(영문) 수원지방법원 2016.11.30 2016노4921 | 리걸엔진

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(영문) 수원지방법원 2016.11.30 2016노4921

사기

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The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. A. Around March 2011, the Defendant, a representative director, entered into an agreement between Company V (hereinafter “V”) and Company I (hereinafter “I”) with respect to the performance of the obligation to permit the construction of private roads and V on the sales contract and two parcels outside W of Gyeonggi Pyeong-gun, and B.

According to the above agreement, the Defendant was obligated to cancel the registration of creation of a collateral security (hereinafter “instant collateral security”) in the name of I, which was set up on the land of Gyeonggi-gun, Gyeonggi-do, the Gyeonggi-do, the Gyeonggi-do, which was sold by the Defendant to the victim pursuant to the said agreement (the share of 823/2,528 square meters out of 2,528 square meters of the aforesaid forest land as the registration injury; hereinafter “the instant land”).

The Defendant, as a matter of course, believed that I would perform the duty to cancel the registration of the establishment of the instant right to collateral security in accordance with the foregoing agreement, concluded a sales contract to sell the instant land to the victim (hereinafter “instant sales contract”) and received the down payment. As a result, the Defendant could not cancel the registration of the establishment of the instant right to collateral security because I failed to perform the said duty.

Therefore, at the time of entering into the instant sales contract, the Defendant deceivings the victim.

No person shall be deemed to have obtained the down payment by fraud.

B. The sentence of unfair sentencing (one year of imprisonment) by the lower court is too unreasonable.

2. Determination

A. Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court as well as the witness X’s partial statement of the party witness X, the Defendant, even though having no intent or ability to cancel the instant collateral security, concluded the instant sales contract and obtained the down payment of KRW 100 million to the victim by August 8, 201, can sufficiently be recognized in the lower judgment.

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