The subject matter of deception as an action of fraud

Inasmuch as deception as an act of fraud does not necessarily require false indication as to the important part of a juristic act, and it is sufficient if it is based on the facts that form the basis of judgment in order to enable an actor to engage in an act of disposal of property that he wishes to do, in the event that it belongs to the purpose and borrows money, if the other party would have not lent money if he had notified the real purpose, the deception, which is the act of fraud, should be deemed to have been committed.

Article 347(1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant

Busan District Court Decision 95No2126 delivered on November 1, 1995

The appeal is dismissed.

We examine the grounds of appeal.

1. On the first ground for appeal

According to the records, the defendant could sufficiently recognize the criminal facts of this case where he acquired money KRW 20,00,000 from the victim by failing to exhaust all necessary deliberations as discussed in the judgment of the court below or by violating the rules of evidence, which affected the conclusion of the judgment, on the ground that "if the defendant borrowed money of KRW 20,00,000,000 to a third party, it is necessary to use it as a contact expense, and received a considerable amount of money from the landowner within 2 months, and return part of it together with the above borrowed money." The defendant borrowed money of KRW 20,00,000 from the victim, and then consumed it for his own cost of living, thereby making it difficult to fully recognize the criminal facts of this case where he acquired the money of KRW 20,00,000,000.

2. On the second ground for appeal

Inasmuch as deception as an act of fraud does not necessarily require false indication as to the important part of a juristic act, and it is sufficient if it is based on the facts that form the basis of judgment in order to enable an actor to perform the act of disposal of property he wishes, in the case of taking money and taking advantage of the purpose, if it is in a relationship that the other party would not have borrowed money if he had notified the real purpose, the deception, which is an act of fraud, shall be deemed to have been committed (see Supreme Court Decision 95Do707 delivered on September 15, 1995).

Although the defendant did not have the intent and ability to divide not only the cancellation of designation of a development restriction zone but also the pecuniary benefits that will be gained from such cancellation, if the defendant borrowed money from the victim, it would be used as necessary expenses to cancel the designation of a development restriction zone and as if the victim would divide the benefits that will be obtained from the cancellation of the designation of the development restriction zone, and then borrowed money from the victim, the above act of the defendant constitutes deception in fraud, and the victim would have caused mistake by deceiving the defendant, and it should be deemed that there was an intention to acquire another person's money. Therefore, even if the defendant had a status as a local public official and owned a house under his own name, such circumstance cannot be an obstacle to recognizing the criminal fraud. There is no reason in the judgment of the court below that there is no error in the misapprehension of legal principles as to the crime of deception and fraud, lack of reason, and incomplete deliberation.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)