2015Do1809 Fraudulent

1. A;

2. B

Defendants

Attorney C (National Ship for Defendant B)

Seoul Southern District Court Decision 2014No1934 Decided January 9, 2015

June 11, 2015

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged and the summary of the facts charged in this case as modified by the original court (1) are as follows.

① Defendant B demanded to borrow money from Defendant A, who is a wife, due to the need for money to invest in the E tour operated by Yong-Nam, and Defendant A knew on May 1, 2007 that he would be urgently needed to repay money to the victim for 25 years. However, the above travel agent at the time was unable to pay money to the employees. Since the Defendants’ obligation was established in excess of the market price, Defendant B did not have any intent to pay money from the victim under the name of 50 million won. However, Defendant B conspired to borrow money from the Defendant’s bank account under the name of 20 million won for the same day, and acquired money from the Defendant Company to the Defendant’s 6th day on the same day. However, Defendant B did not have any possibility of borrowing money from the Defendant’s husband for the purpose of paying money to the Defendant. However, Defendant B would have borrowed money from the Defendant’s bank account under the name of 500 million won.

③ Defendant B demanded to lend money to Defendant A for the purpose of operating a travel agency. Defendant A occupied the victim’s “B” on November 10, 2008, and if the registration fee is required, Defendant B would have to repay all the money before the loan. However, the Defendants had no intent to use the money for the registration fee and used the money for the repayment of obligations to F. Defendant B had no intent or ability to use the money from the victim with a bad credit standing. Nevertheless, Defendant B conspired with the above, and obtained money from the victim as the bank account in the name of the Defendant’s name on the same day, and acquired it by taking into account the following facts charged by the Defendants: (a) the Defendants had the intent to use the money for the registration fee; and (b) the Defendants had no intent to use the money for the repayment of obligations to the victim; and (c) the Defendants had no intent or ability to use the money from the victim with the intent to borrow money from the victim’s personal account in the name of the Defendant’s name; and (d) the Defendants had no capacity to obtain money from the victim’s personal intent to borrow money.

2. The above determination by the court below is difficult to accept. (1) The issue of whether fraud is established through the deception of borrowed money is determined as at the time of borrowing. Thus, even if the defendant had the intent and ability to repay the borrowed money at the time of borrowing, if the defendant did not repay the borrowed money thereafter, this is merely a civil default, and it cannot be said that a criminal fraud is established. The existence of the criminal intent of defraudation, which is a subjective constituent element of the crime, should be determined by taking into account objective circumstances such as the defendant's financial power before and after the crime unless the defendant makes a confession (see Supreme Court Decision 95Do3034 delivered on March 26, 196). Meanwhile, the conviction should be based on evidence with probative value sufficient to cause a judge to have a reasonable doubt, and if there is no such evidence, there is no choice but to determine whether the defendant is guilty of the facts charged, even if there is a doubt about the defendant's profits, which is a subjective constituent element of the crime.

10. In addition, in a loan transaction for consumption made in the course of carrying out a business as in this case, if the default was predicted in advance, the business is operated as a result of the forecast in advance.

In the event of the problem of fraud with respect to a person, the mere fact that the company was predicted to be able to do so in accordance with the circumstances because the company was in a state of poor management at the time of borrowing is unreasonable since it is the same as the determination of the criminal intent by the result of the occurrence of the occurrence of the crime. In such a case, even if the corporate manager was aware of the possibility of nonperformance, it is difficult to conclude that there was a criminal intent by defraudation when the corporate manager was willing to make efforts to faithfully perform the contract (see Supreme Court Decision 2001Do202, Mar. 27, 2001). (2) The records show the following circumstances according to the records.

① A reconstruction project was implemented for H apartment owned by Defendant B. After completion of the reconstruction project, Defendant B’s ownership registration was completed on January 12, 2009 with respect to G apartment 124 Dong 1102 (hereinafter “instant apartment”) located in Gangdong-gu Seoul, Gangdong-gu, Seoul. In light of the fact that: (a) the registration of ownership was completed on January 12, 2009 with respect to G apartment 124 Dong 1102 (hereinafter “instant apartment”); and (b) the said day exceeds the maximum debt amount of KRW 560 million, the value of the right to sell the instant apartment owned by Defendant B at the time of borrowing money from the victim was at least KRW 50 million; (c) Defendant B took out moving expenses as a reconstruction project for the said H apartment; and (d) Defendant B took account of the circumstances that the aforementioned claim for relocation expenses was set at KRW 117,000,000,000 as to the instant apartment to secure the aforementioned relocation expenses after completion of the reconstruction project.

③ Meanwhile, Defendant B stated to the effect that, at the time of borrowing money from the public prosecutor’s office on May 207, 2007, Defendant B borrowed money from 180 million won from her personal bond business operator, 30 million won, and was liable for an amount equivalent to KRW 500 million from her own name at the time of borrowing money from 200 million. However, Defendant B appears to have mistakenly stated that the above statement made by the public prosecutor was 10 billion and 30 million from her personal bond business operator at the time of sale of the above apartment and 10 million won, it was difficult for the Defendants to offer money as security. However, considering that the above 200 million won was 5 billion won and 50 billion won, at the time of sale of the apartment house, at the time of borrowing money from 100 million won from her personal bond business operator, Defendant B did not appear to have been liable for the above 300 million debt amount at the time of the above sale of the apartment house.

④ Furthermore, as indicated in the facts charged in this case, Defendant A, as the victim borrowed KRW 45 million from the victim on June 11, 2007, and Defendant A’s husband, notified the victim of the fact that the financial situation of the travel agent operated by Defendant B is difficult by the company operating the victim due to the default of payment. Furthermore, although Defendant A did not deposit money with Defendant B on the following day of the victim’s horse, it was deposited KRW 80 million exceeding the above loan amount from June 19, 2007 to the Defendant’s national bank account from June 22, 2007 to June 19, 2007. Considering this point, it is difficult to conclude that Defendant A’s statement to the effect that Defendant A’s “on the following day” was merely an exaggeration of the time of payment of other revenues due to an imminent financial crisis, and it was difficult to conclude that it falls under the time of payment of other revenues.

⑤ Defendant A and the victim were living in adjoining areas for 25 years, and the victim knew to Defendant A for 203 years, prior to the respective borrowing date at issue in this case, and the victim was 203, prior to the respective borrowing date at issue in this case, and 205.

10. In light of the fact that each loan of KRW 25,200,000 was made without setting interest or the due date for payment, and the victim filed a complaint against the Defendants from November 10, 2008, which was about five years after the last date of the loan, around October 10, 2013, around October 201, there is room to view that the victim merely lent money with the Defendant’s belief that he would make a full payment of money, rather than lending money to the Defendant A with a long-term knowledge of human relations.

6. In addition to the defendants' statement that they would pay the above money later at the time of borrowing the money, there is no evidence to acknowledge that they made active fraudulent acts, such as preparing and presenting false documents in order to impose a financial burden on the victim.

7) From August 2007 to November 2008, the Defendants paid the amount of KRW 1 million to the victim as the monthly interest. In addition, on November 10, 2008, the Defendants borrowed money as the registration expense on November 10, 2008, and in fact, on January 12, 2009, the registration of ownership preservation was completed in the name of the Defendant B with respect to the instant apartment.

③ Defendant B retired from office until March 2006, and invested in the said E tourer operated by the wife-Nam-Nam-Nam. Defendant B, who committed suicide at the expense of the travel agency on June 2007, 2007, appears to have rapidly deteriorated the Defendant B’s financial status from the date of its direct operation. Although Defendant B had been able to care for the company by investing a large amount of money, the said travel agency’s financial status continued to worsen, the said travel agency’s business was closed at the end of the year 2008 or the beginning of the year 2009, and therefore, Defendant B could not pay the victim the principal and interest as well as the principal.

(3) In full view of these circumstances, it is difficult to view that the court below’s circumstance or the evidence presented by the prosecutor alone alone proves that the Defendants had no intent or ability to repay the borrowed amount from the time of each of the instant borrowings, or that they had the intent to acquire the borrowed amount, without any reasonable doubt.

(4) Nevertheless, the lower court determined that the criminal intent was recognized by deceiving the Defendants on the sole basis of the circumstances as indicated in its reasoning. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the criminal intent to acquire fraud, thereby adversely affecting

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon

Justices Kim Jae-tae

Justices Jo Hee-de

Justices Park Sang-ok