The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. The judgment of fraud against Defendant A is established by deceiving another person to make a mistake, inducing a dispositive act, thereby gaining property or pecuniary benefits. If an employee of a company or a corporation also has obtained property or pecuniary benefits by deceiving the company or the corporation to make a mistake and inducing a dispositive act, a crime of fraud is established. However, if he/she has acquired such property or pecuniary benefits, a crime of fraud under Article 347(1) of the Criminal Act is established, and if he/she has had a third party acquire such property or pecuniary benefits, a crime of fraud under Article 347(2) of the Criminal Act is established.

In addition, the phrase “dispositive act” refers to property dispositive act. In a case where a subjective perception of the consequences of the disposition by the defrauded, i.e., the consequences of the disposition, and there is an objectively controlled act, dispositive act is recognized (see, e.g., Supreme Court Decisions 87Do1042, Oct. 26, 1987; 201Do769, Apr. 14, 201). Meanwhile, in a case where it is deemed that there is no concern about the Defendant’s exercise of the Defendant’s defense right to defense within the extent consistent with the facts charged, the court may ex officio recognize facts different from those recorded in the indictment even if the indictment was not modified, and in such a case, if the facts charged actually recognized in comparison with the facts charged in the indictment are not mitigated, and thus, if it is deemed that there is considerable violation of the justice and equity in view of the purpose of criminal procedure, which is prompt discovery of substantial truth through proper procedures, and if it is not punished on the grounds that the indictment was not modified.

Supreme Court Decisions 2003Do1366 Decided May 13, 2003; 2005Do9268 Decided April 13, 2006; 2005Do9268 Decided April 29, 201.