2013Do10869 Fraudulent

A

Defendant

Seoul Western District Court Decision 2013No433 Decided August 29, 2013

November 12, 2015

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

The grounds of appeal are examined.

1. As to the fraud of KRW 20 million on January 19, 2012

A. The summary of the facts charged is that the Defendant did not receive the introduction fee from E, and even if receiving the introduction fee from the victim, the Defendant did not intend to pay it to E. However, on January 19, 2012, the Defendant sent money to the victim on the following grounds: “On January 19, 2012, the Defendant sent money to the victim because he requested the introduction fee, and failed to perform the business of making a call every day,” and the Defendant received KRW 20 million from the victim and acquired it by fraud.

The first instance court found the defendant guilty on the ground that he was obtained to E as an introduction fee for only five million won, among the KRW 20 million, and found the defendant guilty on the ground that he was obtained to pay to E as an introduction fee, and judged the defendant guilty on the ground that the remaining KRW 15 million was properly received as an agreement fee from the victim, but the court below found the defendant not guilty on the ground that the defendant was obtained to pay all the KRW 20 million to E as an introduction fee, and found the defendant guilty on all the charges.

B. However, it is difficult to accept the foregoing determination by the lower court for the following reasons. (1) Article 308 of the Criminal Procedure Act provides that the probative value of evidence shall be determined by the free judgment of the judge is consistent with the finding of substantial truth. The fact-finding judge, who has the discretionary power over the determination of evidence, has no perception and investigation obtained in the trial proceedings in fact-finding, and such determination must be consistent with logical and empirical rules, and the degree of the formation of a conviction for the conviction of the Defendant ought to reach the extent that there is no reasonable doubt (see, e.g., Supreme Court Decision 2012Do1057, Mar. 14, 2013).

2) In this case, the Defendant asserts that the Defendant agreed to mediate a sales contract for the charging station, etc. to receive KRW 30 million and only received KRW 20 million from the victim as part of the commission under the above agreement, and that the Defendant did not defraud the said money by deceiving the victim. On the contrary, the Defendant asserts that the victim was to deliver the said money to E with the knowledge that he would have to pay KRW 20 million to E, by deceiving the victim.

3) We examine the credibility of the victim’s statement.

According to the records, the victim received a proposal that he will take over and operate a charging station rather than a telecomian, from the defendant who became aware of the fact that he received money from the Internet to obtain a loan necessary for accepting telecom, and entered into the contract of this case on January 17, 2012 with H (hereinafter “H”) to purchase the filling station and the company’s stocks, etc. (hereinafter “ charging station, etc.”) with the price of 2.78,000,000 won from the defendant’s brokerage, and (2) in the process, the defendant introduced the charging station, etc. for the victim, and agreed to receive fees from the victim (the victim stated that he was aware that he was to pay 30,000,000 won to the defendant), and (3) it is difficult for the victim to do so with the fact that he did not receive any delegation from the victim or that he did not do so for the purpose of the victim.

If the victim grants KRW 20 million to E as the Defendant’s end, it is reasonable in light of the empirical rule to directly pay KRW 20 million to E after confirming the grounds for and amount of the request for the introduction fee by contact to E. However, it is difficult to understand that the victim did not contact to E at all and delivers KRW 20 million to the Defendant.

Therefore, it is difficult to believe that the victim's statement, which was the main basis of the judgment of conviction, is the victim's statement, that is, the victim's statement, knowing that the victim would be able to provide E with the introduction fee of KRW 20 million.

4) The victim asserts that there was no reason to pay the fee to the defendant before the defendant dies from the date of entering into the contract of this case to pay the balance under the contract of this case to H. The victim asserts that there was no reason for the defendant to pay the fee of KRW 20 million from the date of entering into the contract of this case to Jan. 19, 2012, which is after this frame. However, the defendant thought that the defendant naturally received the fee corresponding to the above role as a matter of course since the victim played a certain role for the victim, such as introducing the subject matter of the transaction, arranging the conclusion of the contract, etc. when the victim purchases the filling station, etc., and requested the victim to pay the fee of KRW 20 million,000,000,000 to the defendant, and the victim who was in the position to pay the fee to the defendant to pay the second half, was a part of the fee to the defendant in mind that it should be settled later, it is difficult to eliminate the possibility that the victim paid the fee of KRW 20 million as part of the fee.

5) As to the reasons why the defendant received KRW 20 million from the victim and sought to pay KRW 15 million in relation to E in relation to the said reason, the defendant has been under the command of "the victim, who was trying to pay KRW 15 million in this name," and even E has received KRW 20 million as well as a receipt of KRW 20 million, and there is no fact that he is the victim as described in the facts charged. Thus, it is difficult to dismiss the above change that the defendant mentioned E in his idea to be easily paid the fee for his own agreement, that is, there is no doubt that there is no doubt about the above change.

In addition, even if the defendant received 20 million won from the victim and received 20 million won from the victim and received E in relation to the name of the victim, there is sufficient room to understand that E, in addition to the fee to be paid to the defendant, it would be sufficient to understand that E would give priority to paying the fee to be paid by the defendant in order to solve the demand of the defendant (the defendant will know about the case of 20 million won that the defendant actually received from the victim, and it is not a problem that the victim would not have superior to E).

Considering such circumstances, the Defendant cannot be found guilty of the facts charged in the instant case solely on the ground that he/she received KRW 20 million from the victim on January 19, 2012 and referred to in E in relation to the title thereof.

C. Ultimately, it is difficult to view that this part of the facts charged is guilty by evidence with probative value, which leads to the conviction that the facts charged are true to the extent that there is no reasonable doubt, and the court below did not have credibility or deception of the defendant.

The facts charged in this case were found guilty due to insufficient circumstances to recognize the above. The court below erred by misapprehending the legal principles on the principle of free evaluation of evidence and by misunderstanding facts in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

2. As to the fraud of KRW 3 million on February 2, 2012, the lower court found the Defendant guilty of this part of the facts charged by recognizing the fact that the Defendant, on the grounds as indicated in its reasoning, deceiving the victim and defrauded the victim with KRW 3 million under the pretext of loan brokerage expenses.

Even if examining the reasoning of the lower judgment in light of the evidence, the lower court did not err by misapprehending the facts contrary to logical and empirical rules, contrary to what is alleged in the grounds of appeal.

3. Scope of reversal

Of the lower judgment, the part of the lower judgment was reversed on the grounds as seen earlier, on January 19, 2012, on which KRW 20 million was committed. Since the lower court rendered a single sentence on the ground that the remaining conviction and the remaining concurrent crimes under the former part of Article 37 of the Criminal Act are concurrent crimes, the lower judgment is reversed in its entirety.

4. Conclusion

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 Kim Yong-deok

Justices Park Young-young

Note Justice Kim Gin-chul

Justices Kim Jong-il