In order to establish fraud, there should be a successive causal relationship between deception and mistake of the other party and delivery of property or provision of property benefits (affirmative)

Article 347 of the Criminal Act

Supreme Court Decision 78Do1808 Decided August 14, 1979 (Gong1979, 1200) Supreme Court Decision 2008Do1697 Decided June 23, 2009

Defendant 1 and two others

Defendant 1 and Prosecutor

Attorney Park Jin-hee et al.

Suwon District Court Decision 2017No2735, 3963 decided August 18, 2017

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to Suwon District Court.

The prosecutor's grounds of appeal are examined.

The lower court affirmed the judgment of the first instance court with the following reasons as stated in its reasoning. On July 2, 2013, the first instance court acquitted the Defendants of each part of the charges of this case on the ground that: (a) with respect to the Defendant’s ○ apartment mortgage loan and the Defendant’s occupation on July 2, 2013, the injured bank assessed the security value through an appraisal of each secured real estate; (b) calculated the possible scope of the secured loan; and (c) filed a complaint against the cancellation of the nearby mortgage registration at will without filing a complaint against the Defendants as a normal secured loan; and (b) acknowledged the fact that the damaged bank made a complaint against the cancellation of the above secured mortgage registration at will without filing a complaint against the Defendants as a fraudulent act; (c) the Defendants cannot be deemed to have an obligation to notify the purpose of the secured loan; and (d) it is difficult to recognize that the damaged bank was making a loan by mistake with respect to the Defendants’ intent to repay the loans, ability, and occupation of Defendant 3, etc.; and (d)

The crime of fraud is established by deceiving another person to omit his/her mistake, inducing a dispositive act, thereby obtaining property or pecuniary benefits. There must be a causal relationship between the deception and the mistake of the other party and the granting of property or the granting of pecuniary benefits (see Supreme Court Decisions 78Do1808, Aug. 14, 1979; 2008Do1697, Jun. 23, 2009, etc.).

Of the facts charged in the instant case, the Defendants deceptiond each of the above part of the facts charged, even if the Defendants did not have the intent or ability to repay the loan even if they were to obtain the loan by collateral, and thought that they were used for the loan by arbitrarily cancelling the registration of creation of a neighboring mortgage which was completed with respect to each of the secured real estate, but they concealed it and made a false statement about Defendant 3’s occupation. In the absence of the Defendants’ intent or ability to actually obtain the loan from such motive and to repay the loan, it would accord with the empirical rule to deem that the damaged bank did not perform the loan even with the knowledge of such fact, and therefore, there is a causation between the Defendants’ act

Nevertheless, without examining and determining whether the Defendants committed the above act, and whether such act constitutes deception, the lower court upheld the first instance judgment that acquitted the Defendants of this part of the charges on the ground that there was no causal link between the Defendants’ act and the dispositive act of the damaged bank’s property disposal. In so doing, the lower court erred by misapprehending the legal doctrine on causation in fraud and deception, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

The part of the judgment of the court below regarding the fraud due to the above fraud should be reversed on the grounds as seen earlier. However, the guilty part of the judgment of the court below and the reversed part should be sentenced to a single sentence for the whole crime under the former part of Article 37 of the Criminal Act. Therefore, the guilty part of the judgment of the court below should be reversed together with the above reversed part. Ultimately, the part of the judgment of the court below regarding

Therefore, without further proceeding to decide on Defendant 1’s grounds of appeal, the part concerning the Defendants among the judgment below is reversed, and that part of the case is remanded to the court below 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 Lee Ki-taik (Presiding Justice)