(영문) 서울서부지방법원 2015.07.10 2015노107

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(영문) 서울서부지방법원 2015.07.10 2015노107

사기

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The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 8,000,000.

The above fine shall not be paid by the defendant.

Reasons

1. Summary of grounds for appeal;

A. The Defendant had intention or ability to implement an import contract for clothes (ZARA) concluded with B on June 27, 201 with the Defendant’s side at the time of receiving the payment of KRW 48 million from the victim B as down payment, and KRW 12 million on July 1, 2011 with the Defendant’s side at the time of receiving the payment of the remainder as down payment.

Nevertheless, the court below found the defendant guilty of the facts charged in this case by misunderstanding the facts.

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

2. Determination

A. (1) Determination of the assertion of mistake of facts (1) Inasmuch as the criminal intent of defraudation, which is a subjective constituent element of the crime of fraud, is not the confession of the defendant, it is inevitable to determine by comprehensively taking account of the objective circumstances such as the financial history, environment, details and contents of the crime before and after

(2) According to the following circumstances acknowledged by the evidence duly adopted and investigated at the lower court and the lower court (see, e.g., Supreme Court Decision 2004Do8651, Mar. 24, 2005). (2) According to the following circumstances, it can be recognized that the Defendant, while the victim was unable to pay the balance of the contract of this case on behalf of the victim, by deceiving the victim to pay the balance on behalf of the victim and by receiving the payment of the sum of the down payment amount of KRW 60 million from the victim.

① The Defendant decided to sell the son’s clothes through D in which she concurrently imports her clothes. Upon receiving KRW 60,000,000 from the victim as down payment, the Defendant paid the remainder of KRW 140,000,000 to the victim, and then received any balance from the victim when she delivers the goods later.

The actual operation of the defendant and the LAC in question tried to prepare balance through E, which is the F's will.

(2) Accordingly, the Defendant is paid the down payment from the victim on June 27, 2011.

참조판례

-대법원 2005. 3. 24. 선고 2004도8651 판결

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