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1. The part of the judgment of the court below against Defendant A is reversed.
2. Defendant A shall be punished by imprisonment for a period of two years and eight months;
3...
Reasons
1. Summary of grounds for appeal;
A. There is no mistake of fact (limited to Defendant B) Defendant B, as stated in the facts constituting a crime in the judgment of the court below.
Defendant
B Only recommended L to make an investment by judging that L's investment in Cheongong-gun N Forest (hereinafter "the forest of this case") would be a profit if it invests in the forest of this case.
Defendant
A performed all the activities relating to the investment in the forest of this case, and Defendant B is only the victim of the fraud of Defendant A.
Defendant
B around October 8, 2008, L was hospitalized in a hospital due to the bridge of B at the time of drafting a sales contract on P and Q & 2 lots (hereinafter “instant land”) with the introduction of Defendant A around October 8, 2008, and thus, it was entirely unaware of L and P’s real estate transactions and the details of money transactions between Defendant A and L.
In addition, the sum of KRW 92,50,000 ( KRW 50,000,000 on October 9, 2008, KRW 30,000,000 on October 17, 2008, KRW 12,500,000 on October 20, 2008) that L deposited into the said agricultural bank account is merely the money that Defendant A borrowed from L for personal use.
B. Although the conclusion of a contract between L/P was revoked, and the Defendants were in a position to return KRW 92.5 million to L, the Defendants again lent the above money to the Defendants, and thus, the Defendants were in a position to keep another’s property in custody.
The defendants cannot be deemed to have refused to return the victim's property.
C. The sentence imposed by the lower court on the Defendants (Defendant A: imprisonment of three years, and imprisonment of two years) is too unreasonable.
2. Determination
A. (1) As to the assertion of mistake of facts, the conspiracy is not required under the law in a co-offender relationship that two or more persons of the relevant legal principles jointly process for a crime, but is only a combination of intent to realize a crime by combining two or more persons to jointly process and realize a crime, and such intent is successively or implicitly accepted.