2015Do16081 Fraud

A

Defendant

Daejeon District Court Decision 2014No3830 Decided September 22, 2015

December 23, 2015

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. The judgment of the court below

The summary of the facts charged of the instant case is that “In the maintenance shop for the management of the victim in Pyeongtaek-si on July 19, 2012 where the Defendant did not intend to pay repair costs, the victim requested repair as if the victim would have paid repair costs, and then obtained pecuniary benefits equivalent to repair costs by providing repair costs of 768,570 won from the victim, by deceiving the victim.”

The lower court upheld the first instance judgment convicting the Defendant of the instant facts charged on the ground that there was no fact that the Defendant had made a speech to repair without compensation at the time of leaving repair, the Defendant refused to pay repair costs on the ground of free repair after completion of repair, and the Defendant did not have any grounds for requesting the victim to repair without compensation.

2. The judgment of this Court

According to the records, around February 2011, at the maintenance center for the management of the victim, the defendant had been repairing parts of the defendant's cargo vehicle, such as the gas diskettes (the pipe emitting exhaust gas from the engine) with non-nets (hereinafter referred to as "first repair"). However, due to the problem in the above parts, the defendant again visited the maintenance center for the management of the victim on July 19, 2012 and charged the repair of the above parts. After the completion of the repair of this case, the defendant did not pay repair expenses if he did not reach an agreement with the victim on the amount of repair expenses, but driving the vehicle without paying repair expenses. Accordingly, the defendant thought that the repair was erroneous and expected to be able to receive repair expenses or reduce repair expenses without compensation, but it is highly probable to deem that the victim requested repair expenses in full, and that the defendant could not be held liable for non-performance of the civil liability for the repair expenses from the beginning, considering that there is insufficient evidence to prove that the defendant could not have any other financial burden from the beginning.

Nevertheless, the lower court determined that the Defendant had the intent to acquire money equivalent to the repair cost at the time of entrusting the instant repair to the victim, and thereby convicted the Defendant of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the intent to obtain fraud and deception in fraud, thereby affecting the conclusion

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Park Young-young

Justices Kim In-bok, Counsel for defendant

Justices Kim Jong-il