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(영문) 광주고등법원 2017.10.19 2016노135
특정경제범죄가중처벌등에관한법률위반(사기)등
Text

The Defendants’ appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding the facts related to fraud or misunderstanding of the legal principles 1) Defendant A did not intend to acquire pecuniary profits by deceiving the damaged company at the time of signing a lawsuit for the establishment of the right to collateral security (hereinafter “the instant right to collateral security”) established on the instant real estate with the victimized company, or by deceiving the damaged company at the time of cancelling the instant right to collateral security, and thus, Defendant A does not constitute fraud.

2) Even in a case where a crime of fraud is recognized against Defendant A, Defendant D did not conspired to commit a crime with Defendant A, or was merely an aiding and abetting a crime of fraud. B. Defendant A’s assertion of misunderstanding of, or misapprehension of the legal doctrine on, the crime of embezzlement is not established on the sales proceeds of agricultural machinery, because there was no intention of embezzlement or intention of unlawful acquisition.

(c)

The sentence of the court below against the defendants alleged to be unfair in sentencing is too unreasonable.

2. Determination as to the Defendants’ misunderstanding of facts or misapprehension of legal principles

A. 1) The lower court found the Defendants guilty on the ground of the evidence duly adopted and investigated in the lower judgment that the Defendants conspired to deception the damaged company, thereby cancelling the instant collateral security by obtaining documents necessary for the cancellation of the instant collateral security.

The judgment below

Examining the reasoning in comparison with the evidence duly adopted and examined by the court and the court below, the judgment below erred by misapprehending the legal principles as alleged by the Defendants.

subsection (b) of this section.

The Defendants’ assertion is not accepted.

2) According to the evidence duly adopted and examined by the lower court, following the Defendants’ receipt of documents necessary to cancel the instant collateral from the victimized Company on June 25, 2012, immediately cancelled the instant collateral on the day, and on June 27, 2012, a loan secured by the instant real estate to the present Agricultural Cooperatives on the date.

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