(영문) 부산지방법원 2017.12.01 2017노3053 | 리걸엔진

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크기(pt)

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줄 간격

자간(%)

(영문) 부산지방법원 2017.12.01 2017노3053

사기

Text

The defendant's appeal is dismissed.

Reasons

1. The lower court, among the instant facts charged against the Defendant, found the Defendant guilty as to the fraud No. 25 of [Attachment 2017 List No. 1] of [Attachment 280] as indicated in the judgment of the lower court, and found the Defendant guilty as to the remainder of the facts charged. Since the Defendant’s only appeal as to the guilty portion and the acquittal portion that the prosecutor did not appeal was final and conclusive by the lapse of the appeal period, the lower court should have determined that only the convicted portion of the lower judgment should be tried.

2. Summary of grounds for appeal;

A. The lower court found the Defendant guilty of all the facts charged of this case, although there was no misunderstanding of facts or misunderstanding of legal principles, by deceiving victims to receive money or obtaining pecuniary benefits. In so doing, the lower court erred by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.

B. The punishment sentenced by the lower court (three years of imprisonment) is too unreasonable.

3. Determination

A. Determination 1 on the assertion of mistake or misunderstanding of the legal doctrine 1) In a case where a criminal defendant denies an intentional act, which is a subjective element of the constituent elements of a crime, the criminal intent itself cannot be objectively proved. Therefore, it is inevitable to prove it by means of proving indirect or circumstantial facts relevant to the criminal intent in light of the nature of an object

In such a case, what constitutes an indirect or circumstantial fact ought to be determined by a reasonable method of determining the link of facts based on the normal empirical rule with the close observation and analysis power (see, e.g., Supreme Court Decision 2005Do8645, Feb. 23, 2006). Meanwhile, in light of the spirit of substantial direct psychologicalism adopted by the Criminal Procedure Act of Korea, the first instance court’s determination on the credibility of the statement made by a witness of the first instance trial was clearly erroneous.

The result of the first deliberation and the appellate court shall be the special circumstances or the results of the examination.

참조판례

-대법원 2006. 2. 23. 선고 2005도8645 판결

유사 판례

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