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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1) The provisional registration of the right to claim ownership transfer registration under the I’s name on each of the instant real estate in mistake of facts (hereinafter “each of the instant provisional registration”).
(2) In light of the amount of secured debt secured by the Defendant and the Defendant’s financial ability to repay, the Defendant had the ability and intent to cancel each of the instant provisional registrations, and thus, the Defendant did not have the intent to acquire the victims by deceit. (2) The sentence of unfair sentencing (one year and six months of imprisonment) by the lower court is too unreasonable.
B. According to the evidence submitted by the prosecutor, the court below acquitted the Defendant of this part of the facts charged, although the Defendant could sufficiently recognize the fact of deceiving G by deceiving G as stated in the facts charged, and there is an error of law by misunderstanding the facts and by misunderstanding the legal principles, which affected the conclusion of the judgment. 2) The sentence of the court below of unfair sentencing is too uneasible and unfair.
2. Determination
A. The deception as a requirement for a judgment of fraud as to the Defendant’s assertion of mistake of facts refers to all affirmative and passive acts that have to be followed by each other in property transactional relations, and that is not necessarily required to be related to the important part of a juristic act. It is sufficient to establish the basis for judgment in order to allow an actor to conduct a disposal of property that the actor wishes by omitting the other party’s mistake.
In addition, whether a certain act constitutes a deception that causes mistake of another person should be determined generally and objectively in consideration of the situation of the transaction, the other party's knowledge, experience, occupation, and other specific circumstances at the time of the act.
(see, e.g., Supreme Court Decision 2009Do7459, Oct. 15, 2009). Furthermore, according to the spirit of substantial direct trial that our Criminal Procedure Act adopts as one of the elements of trial-oriented principle.