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All appeals filed by the defendant and prosecutor are dismissed.
Reasons
1. Summary of grounds for appeal;
A. The Defendant (the Defendant’s assertion of mistake of facts as to the part of the crime) was not a strike around May 2004, but was normally operated until September 2004. The Defendant continued to operate the system independently from April 2005 and completed the settlement procedure with the members including the victim.
Therefore, the defendant did not have any intention to commit fraud.
B. The prosecutor (claiming a misunderstanding of facts as to the acquittal portion) already received the guidance amount of the first unit as a member of the guidance of this case, and bears the obligation to pay the guidance amount as a counter-payment. However, at the time when the guidance of this case was in the state of strike, the defendant was not required to collect the guidance amount, but has a duty to inform the victim that the guidance cannot be operated any more, and undergo the settlement procedure.
Nevertheless, the Defendant collected the payment of the deposit money from the victim for the old account once, but the crime of fraud is established.
2. Determination
A. First of all, the Defendant asserted that the instant fraternity was operated by the normal time until September 2004, rather than by around May 2004. However, the lower court’s evidence duly admitted and investigated: (a) the following circumstances acknowledged by the evidence duly admitted by the lower court (i.e., ① the Defendant jointly operated the instant fraternity from the investigation agency to the court in May 25, 2004; and (b) the guidance personnel recruited by the witness was forced to receive the guidance money from the investigation agency to the court; and (c) the Defendant should have remitted the guidance money of KRW 25 million to the witness; however, the Defendant was unable to perform it on the same day.
‘Along with ‘Along with the fact that the trial records are consistently stated (the trial records No. 42, 43, evidence records No. 135, 136), and ② Defendant also under investigation by a prosecutor, and make payment to C insufficient amount in time when K should receive the guidances from May 10, 2004 or around July 2004.