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The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 10,000,000.
The above fine shall not be paid by the defendant.
Reasons
1. Summary of grounds for appeal;
A. At the time of the misunderstanding of facts, the Defendant was actually engaged in the process of accepting securities and asset management companies, and the victim invested in the initial investment and stock trade, etc. for them, and was only an unforeseeable circumstance for which the above underwriting work was not expected at all. The Defendant did not deceiving the victim by making the statement to the victim as stated in the judgment of the court below, and did not intend to commit the crime of deception.
B. The lower court’s sentence of 10 months of imprisonment and 2 years of suspended sentence imposed on the Defendant is too unreasonable.
2. Determination
A. 1) Determination of the assertion of mistake of facts is sufficient if the deception as an action of fraud does not necessarily require a false indication as to the important part of a juristic act, and it is sufficient that it constitutes the basis for judgment to allow an actor to perform a property disposal act that he wishes to dispose of by omitting the other party by mistake. Furthermore, criminal fraud can be established even with an uncertain possibility of criminal facts, and in a case where the defendant denies the criminal intent of defraudation, it is inevitable to determine whether the defendant has the criminal intent of defraudation by taking into account objective circumstances, such as the defendant's financial power, environment, details of the crime, and the process of transaction, etc. of the crime before and after the crime. 2) In full view of the following circumstances recognized by the evidence duly adopted and investigated by the court below and the trial court, it is difficult for the defendant to return the profits and principal agreed upon to the victim within the agreed time limit, and the defendant has received a remittance of money from the victim. Thus, this part of the defendant's assertion is without merit.
(1) The investment money that the defendant receives from a victim.