(영문) 서울남부지방법원 2016.06.17 2016노86

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자간(%)

(영문) 서울남부지방법원 2016.06.17 2016노86

사기

Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. The judgment of the court below that found the defendant guilty, although the defendant was not involved in the fraudulent act against the victims, is erroneous in the misapprehension of facts.

B. The sentence of the lower court’s unfair sentencing (two years and six months of imprisonment) is too unreasonable.

2. Determination

A. In light of the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court as to the assertion of mistake of facts, namely, the Defendant was the actual operator of D Co., Ltd. during the period related to the instant crime, and E appears to have participated in the instant crime according to the Defendant’s instruction, it can be sufficiently recognized that the Defendant acquired money from the victims, such as the facts charged.

B. As to the wrongful assertion of sentencing, ① the victim P was returned KRW 10 million out of the amount of damage (184 pages of the trial record) and the victim R was returned KRW 10 million out of the amount of damage (233 pages of the trial record) are the circumstances favorable to the defendant.

② However, in full view of all the circumstances, including the following: (a) the Defendant was punished twice in fraud (the 1999 imprisonment, the 2 years of suspended execution, the 3.5 million won fine in 2008), (b) the Defendant still went beyond the responsibility for the instant crime without any counter-performance; (c) the amount of damage caused by the instant crime reaches KRW 397 million and has not been recovered most; (d) the Defendant escaped while being tried at the lower court; and (c) the circumstances surrounding the instant crime, such as the background, means, results, and the circumstances after the instant crime, etc., the sentence of the lower court cannot be deemed unfair because it is too unreasonable.

3. As such, the defendant's appeal is without merit, and the defendant's appeal is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act, and it is so decided as per Disposition (Article 7 of the judgment of the court below).

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