2008Do1599 Fraudulent

ShipNS (NOTRNES DOTOTRS), LITOS

Seoul Residence

Seoul basic domicile

Defendant and Prosecutor

Law Firm

Attorney Southern, Kim, Sung-sung, and Lee In-bok

Seoul Northern District Court Decision 2007No966 Decided January 24, 2008

July 10, 2008

The guilty portion of the judgment of the court below is reversed, and the prosecutor's appeal that remanded this part of the case to the Panel Division of the Seoul Northern District Court is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s grounds of appeal, in a criminal trial, the conviction shall be based on evidence with probative value, which makes it possible for a judge to have the truth that the facts charged are true beyond a reasonable doubt, and in the absence of evidence establishing such a degree of conviction, the conviction shall be based on the benefit of the Defendant even if there is suspicion of guilt against the Defendant (see, e.g., Supreme Court Decision 9Do4305, Feb. 25, 2000).

According to the facts and records established by the court below, the evidence shows that the mine in this case has no sanctity, such as the victim's head, one investigation agency, and the first instance court's statement, and the result of the analysis of ingredients in the name of the director of the Korea Mining Promotion Corporation on December 20, 200. However, although the victims' statements were made at the site after being recommended to make investment by the defendant and justice, they did not produce gold differently from that of the defendant's oral investment although they did not make any separate investigation, and the above mine was left neglected without development, so it is difficult to view the above mine as an objective ground for the existence of arbitrity of the above mine. The above ingredients analysis result shows different values as the result of the examination of three samples collected from the above mine in this case, and it is difficult to find that there was no objective evidence for the judgment of arbitrity of the above mine in this case from 10 years to 10 years to 10 days, and it is also difficult to accept the defendant's statements from the above 90-year development data.

In addition, the defendant judged that there was an excellent gold with the result of the ground surface survey, geological survey, and sacrine analysis corporation's launch money at the site of the mine of this case. The defendant argued that materials such as the report of the Maddong Geological Research Institute of the Gwangju International Economic Complex of Gwangju support this, and concluded that the mine of this case was obgncy in the mine of this case. As such, as long as the defendant had judged that there was obgncy in the mine of this case as a result of the defendant's process of confirming her own obgncy, even though the defendant did not confirm the obgncy of the mine of this case through the procedure as stated in the judgment of the court below, unless there are any other circumstances that prove the defendant's intention, such as the above defendant's assertion is false,

In addition, in light of the fact that the Defendant participated in the development of the gold mine of this case as a mining technician, or that the Defendant and the Defendant attempted to attract investment funds from the victim due to lack of funds, it is difficult to conclude that the Defendant did not have any intent or ability to develop the gold mine of this case on the sole basis of the fact that the Defendant did not invest funds or did not have any capital to develop the gold mine.

On the other hand, on the business plan prepared by the defendant, funds equivalent to KRW 3.5 billion have been required for the development period between approximately two years of the mineral exploitation and the extraction of the above mine, and the victim has confirmed it. The victim, after entering into a business agreement with the defendant and the defendant, agreed to purchase the above mining right in 1.2 million won, Kim, the mining right holder of the above mine, and the victim agreed to pay the above amount with the funds obtained from the development of the mine, and the funds necessary for the development are to be fully responsible for the victim. The victim also tried to continuously raise the funds necessary for the mine as planned, and the victim has invested more than KRW 1.20 million and has failed to raise funds more than KRW 1.20 million and reached the limit of the actual financing. In light of the above, it is difficult to view that the victim, once he knew that the funds will be more required at the time of the operation agreement with the defendant and the defendant, the defendant will start the operation of the mine by selling the above funds and making it difficult to say that it will start the operation of the capital.

Unlike this, the court below erred by misapprehending the legal principles as to the degree of probative value of evidence in a criminal trial or by misapprehending the legal principles as to the probative value of evidence in a criminal trial against the rules of evidence and thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the Prosecutor’s Grounds of Appeal

The lower court maintained the first instance judgment that acquitted the Defendant of this part of the facts charged on the ground that there is no evidence to acknowledge that the Defendant conspired with the Defendant to commit a fraudulent act against the victim, taking into account the circumstances as indicated in its reasoning, which are recognized by the employment evidence.

Examining the reasoning of the judgment below in light of the records, we affirm the above fact-finding and judgment of the court below as just, and there is no error of law such as misconception of facts due to violation of the rules of evidence or misunderstanding of legal principles as to co-principal.

3. Conclusion

Therefore, the part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee

Justices Kim Young-young

Justices Lee Hong-hoon