beta
Text
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for a term of one year and two months.
Reasons
1. Summary of grounds for appeal;
A. Although misunderstanding of facts by deceiving a victim by deceiving the victim, the court below found the defendant guilty of the facts charged in this case, which is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.
B. In light of the overall sentencing conditions of the instant case, the lower court’s imprisonment (one year and six months of imprisonment) is too unreasonable.
2. Determination
A. The deception as a requirement for a judgment of mistake of facts refers to all affirmative or passive acts that have to be followed by one another in a widely related property transactional relationship, and thus, it is sufficient to say that it does not necessarily require a false indication as to the important part of a juristic act, and that it is the basis for the judgment for an actor to make a disposition of property that the actor wishes by omitting the other party in mistake. Therefore, in a case where it is recognized that the other party to the transaction would not have been engaged in the transaction if the other party to the transaction would have received a notice of certain circumstances, the person who receives the property is obligated to notify the other party of such circumstances in advance of such circumstances.
Nevertheless, it constitutes a crime of fraud by deceiving the other party by implied disregarding the fact that such notice has not been given.
(See Supreme Court Decision 2003Do7828 delivered on April 9, 2004, etc.). In addition, unless the defendant makes a confession, the subjective constituent elements of the crime of fraud should be determined by taking into account the objective circumstances such as the financial history, environment, details of the crime, and the process of transaction, etc. of the defendant before and after the crime, and the crime of fraud is also established by willful negligence. Thus, the willful negligence as a subjective constituent element of the constituent elements of the crime is the possibility of occurrence of the crime.