The timing and criteria for determining the criminal intent in relation to fraud through the deception of the proceeds of sale;

The establishment of fraud shall be determined at the time of the act, and it shall not be punished for fraud on the ground that the defendant is in a state of default due to changes in economic conditions after the act was committed. Therefore, the determination of the establishment of fraud by deception of so-called parcelling-out price shall be based on the recognition of the possibility that it would be impossible for the buyer to sell the relevant object even if the sales contract was concluded at the time of the conclusion of the sales contract or the receipt of the parcelling-out price, and shall be based on the recognition of the possibility that it would be impossible for the buyer to sell the object at the time of the contract and the receipt of the parcelling-out price.

Article 347(1) of the Criminal Act

Supreme Court Decision 97Do249 delivered on April 11, 1997 (Gong1997Sang, 1518) Supreme Court Decision 2001Do202 Delivered on March 27, 2001

Defendant

Defendant

Attorney Han-won

Seoul High Court Decision 2008No146 decided June 12, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. The intent of the crime of fraud, which is a subjective constituent element of the crime, shall be determined by comprehensively taking into account the objective circumstances, such as the defendant’s re-power, environment, contents of the crime, and the process of performing transactions before and after the crime, insofar as the defendant does not make a confession. The criminal intent is not definite intent, but dolusent intent (see, e.g., Supreme Court Decisions 2007Do10416, Feb. 28, 2008; 2007Do8726, Aug. 21, 2008). In addition, the subjective constituent element of the crime refers to cases where the possibility of occurrence of the crime is uncertain, and it is permissible to acknowledge it as a subjective constituent element of the crime in order to have dolusent intent. Furthermore, it is difficult to determine the possibility of occurrence of the crime by considering the circumstances of the crime committed by the general public, such as the statement of the offender, and it is difficult to determine the possibility of existence of the crime in question by taking into account the subjective evidence of the crime.

On the other hand, the establishment of a crime of fraud shall be determined at the time of the act, and it shall not be punished as a crime of fraud on the ground that the defendant's failure to perform his duties due to changes in economic conditions after the act was committed (see Supreme Court Decisions 97Do249, Apr. 11, 1997; 2001Do202, Mar. 27, 2001; 2001Do202, Apr. 27, 2001). In determining the establishment of a crime of fraud by deceit of the sale price as in this case, whether the defendant had the criminal intent at the time of the conclusion of the contract for the pre-sale or the receipt of the price for the pre-sale, i.e., whether the pre-sale contract was made with respect to the shop in this case and received the price for the pre-sale, even if possible, it shall be determined on the basis of whether such act was committed with the recognition of the possibility of

In addition, the defendant was indicted as a crime of fraud or a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with respect to each of the pre-sale contracts in this case, and each of the above crimes is in a substantive concurrent relationship between the two crimes, and whether the defendant is recognized as a criminal intent to acquire it should be determined individually and specifically for each of the pre-sale contracts in this case

2. The court below acknowledged the facts as stated in its reasoning based on the evidence of its employment, and, in full view of the facts acknowledged, found that the defendant could not maintain the sub-lease contract (hereinafter the "sub-lease contract of this case") with Sung Chang Chang-gu Co., Ltd. (hereinafter the " Sung Chang-gu") with regard to the stores of this case from around August 2004, because it could not be possible to sell the stores of this case to the victims of this case in full, and recognized that the contract of the pre-lease of this case was concluded with the victims and received each purchase price from the victims, the court below determined that all of the contracts of the pre-lease of this case can be recognized.

However, we cannot accept the above determination by the court below for the following reasons.

According to the facts acknowledged by the court below, on August 204, the defendant planned the pre-sale business of this case and prepared the down payment to the non-indicted 1's investment and concluded the sub-lease contract of this case (the defendant shall pay the total of KRW 8 billion with the pre-sale deposit and the pre-sale rent of 5.6 billion, and he shall pay the down payment of KRW 2 billion on the date of the contract) to the non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 6's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 6's non-indicted 2's non-indicted 1's non-indicted 6's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 6's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 2's non-indicted.

In light of the above legal principles and the above facts, if the defendant concludes a pre-sale contract with respect to the store of this case and receives the proceeds of the pre-sale, even if he concludes a pre-sale contract with respect to the pre-sale, it would be impossible for the pre-sale to sell the store of this case to the buyer even if he receives the proceeds of the pre-sale contract, the crime of fraud by the defendant shall be acknowledged. However, if the defendant concludes the pre-sale contract of this case or receives the proceeds of the pre-sale, it shall be determined individually and specifically at the time of conclusion of each pre-sale contract of this case or at the time of receipt of each of the proceeds of the pre-sale contract of this case.

However, if all of the stores of this case were to be sold in lots (the defendant asserts that it would be KRW 9.3 billion or KRW 1.1 billion according to the discount of the sale in lots) and the defendant's business plan was realized in light of the economic situation at the time of the sale in lots or the reality of transactions in lots (the original trial did not examine this part) that it was impossible for the defendant to receive the sales in lots (or the defendant to receive the sales in lots) to use the sales in lots or to receive the sales in lots for the first time after the conclusion of the contract of this case, and it is difficult to view that there was an intention to accept the sales in lots at the time of the conclusion of the contract of this case, such as the possibility that it was impossible for the defendant to arbitrarily use the sales in lots or to receive the sales in lots for the first time after the conclusion of the contract of this case. However, in light of the circumstances acknowledged by the court below, it is difficult to view that each of the stores of this case could have been sold in lots or to receive the sales in lots for another purpose.

Therefore, the court below shall deliberate on the rationality and feasibility of the financing plan of the defendant in relation to the execution of the pre-sale project of this case, the grounds and timing for the defendant to suffer difficulties in raising funds, the grounds for delay of the defendant's obligation to pay funds through the sub-lease contract of this case, the possibility of extending the time and the possibility of the extension thereof, the circumstances and timing of the cancellation of the sub-lease contract of this case, the defendant's intent to commit the above fraud at a certain time, and the decision of whether the pre-sale contract of this case or the proceeds of the pre-sale contract of this case, which was entered into at that time, should be made individually by examining whether the above fraud was established. However, the court below acknowledged that the defendant had already had the intent to commit the above fraud from the time when the pre-sale contract of this case was first concluded, and there is an error of law by misapprehending the legal principles as to the intention of fraud. The ground of appeal pointing this out is with merit.

3. Therefore, without further examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)