[1] In a case where the defrauded did not have awareness of the meaning or content of a dispositive act, but the commission or omission by the defrauded is evaluated as a property-dispositive act that directly causes property loss, and the defrauded aware of such act or omission, whether the dispositive intent corresponding to the dispositive act in fraud is recognized (affirmative)

[2] In a case where the defrauded, as a result of a mistake caused by the actor’s deception, signed or sealed a disposal document that causes an effect different from the intent in deliberation, thereby causing property loss in accordance with the content of the disposal document, whether the act by the defrauded constitutes a dispositive act in fraud (affirmative)

[3] In a case where the Defendant et al., as a document necessary for land transaction permission, etc., signed and sealed a mortgage contract, etc., and received a certificate of personal seal impression, used it to set up a collateral security contract with the Defendant as the debtor on the land owned by Gap et al. and acquired pecuniary profits by borrowing money, the case holding that the lower court erred by misapprehending the legal principles in holding that Gap et al. did not have a disposal act on the land owned by Gap et al. solely on the ground that Gap et al. did not intend to set up a collateral security, etc. on the land

[1] [Majority Opinion] In fraud, a dispositive act is mediating and connecting the final outcome of the actor’s mistake by deception and the acquisition of property or pecuniary gain by the actor, etc. in an intermediate way, while the intrinsic characteristic of the acquisition of property by means of the act of the victim, which is the intrinsic characteristic of the acquisition of property by means of the act of the victim, and the division of larceny by means of seizure, not by the act of the victim. Considering the role and function of the dispositive act, if it is possible to deem that the actor, etc. acquired property or pecuniary gain by means of any act based on the intent of

In fraud, the dispositive intent of the defrauded is a defective intent formed in the state of mistake due to deception, and thus, there is an incomplete or defective intent. It is reasonable to say that the consequences are inconsistent with the subjective perception by the defrauded on the legal or economic effect of the dispositive act, and this is the intrinsic nature of fraud. Therefore, it is sufficient that the dispositive intent has the awareness that the defrauded, who is in error, has committed an act, is aware that he/she has committed an act, and it is not necessary to recognize

As a constituent element of fraud, deception refers to an act contrary to the good faith principle that ought to be widely observed in transactional relations, causing a mistake to another person. Mistake means an perception that is inconsistent with the fact. Whether it pertains to a fact, whether it is related to legal relations, or is related to legal effect. Moreover, there is no limitation on whether the perception of the defrauded, which is inconsistent with the fact, concerns the motive, intent, and purpose of dispositive act, or is related to the dispositive act itself. Therefore, even if the defrauded was unaware of the meaning of his/her act or omission as a result of deception, and did not recognize the consequences of such act, even if he/she did not recognize the consequences of such act, it shall be deemed that there was a dispositive act by the defrauded and an equivalent

The grounds for deeming the victim’s dispositive intent as necessary are that a dispositive act is deemed an act performed by the victim when it is recognized that the victim was aware of the dispositive act. In other words, in fraud, the function of the victim’s dispositive intent is merely a subjective confirmation corresponding to the objective aspect of the existence of the victim’s dispositive act. Therefore, once the victim knew of a certain act deemed a dispositive act, dispositive intent may be deemed to exist. Ultimately, the victim does not need to recognize the consequences of the dispositive act.

In conclusion, in light of the intrinsic nature and structure of fraud, the function and role of dispositive act as well as the intent of dispositive act, and the meaning of deception and mistake, even though the defrauded did not recognize the meaning and content of dispositive act, if the commission or omission by the defrauded is deemed as a property dispositive act directly incurring property loss, and if the defrauded knowingly performed such act or omission, dispositive intent corresponding to the dispositive act is recognized. In other words, the defrauded does not necessarily have to recognize the dispositive intent even as a result of his/her commission or omission.

[Dissenting Opinion by Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Kim Yong-deok, Justice Kim So-young, Justice Jo Hee-de, Justice Park Sang-ok, and Justice Lee Ki-taik] thief is to acquire property by taking advantage of a criminal act committed by a victim’s act of taking advantage of the victim’s act of disposal, and the fraud is divided into two categories. In this sense, fraud is an act of self-damage and larceny, which is a crime of dispositive act. In order to meet the essence of a dispositive act in fraud, it is essential for the victim to decide on the disposal of his/her own property. In other words, only an act or omission controlled by the victim’s intent formed on the basis of awareness that the victim’s act is related to his/her own property right, constitutes a dispositive act as defined in fraud. A dispositive act without any awareness or intent on the result of the disposition is in conflict with its own property itself. In short, even if the victim did not fully recognize what relation his/her own

The constituent elements of fraud shall be interpreted in accordance with the nature of fraud, and it is difficult to recognize the legitimacy of the interpretation of the constituent elements contrary to this nature of fraud. The perception of the consequences of the disposition on the part of the defrauded is naturally required in the interpretation of a dispositive act that features fraud as a self-damage crime and separates from larceny. In other words, according to the nature of fraud and the meaning of the dispositive intent derived therefrom, fraud can be established only where the defrauded, who is erroneous, conducts a dispositive act with awareness of the meaning and consequences of his/her act, and conducts a dispositive act without awareness of the consequences of the disposition, may be limited to the motive, intent, and purpose of the dispositive act, and the mistake on the dispositive act itself, which does not have awareness of the consequences of the disposition, cannot be included in the mistake as referred to in the interpretation of fraud. In the end, it is difficult to accept the interpretation theory of the Majority Opinion as it is, without considering the nature and characteristics of fraud and the nature of the dispositive act, and it is difficult to accept the perception on the part of the defrauded.

According to the Majority interpreting that there is no awareness of the consequences of the disposition on the part of the defrauded in the judgment of dispositive intent in fraud, it is unclear whether fraud is established or not, and the scope of punishment is also likely to be expanded. It is doubtful whether a perpetrator may clearly distinguish between fraud and a crime not fraud without considering the awareness of the defrauded at all in a number of crimes involving deception of the actor. If the defrauded intends to impose criminal punishment against the perpetrator who acquired pecuniary benefits through illegal deception that prevents the defrauded from recognizing the consequences of his/her own act, it would be a correct solution not to change without permission the foundation of the established legal principles on fraud, but to make a separate legislation.

[2] [Majority Opinion] The so-called “signing fraud” refers to a case in which the defrauded, due to a mistake induced by deception, has caused property damage by signing or sealing on an instrument different from the intent of internal deliberation. Here, the essence of the act of deception by the actor lies in using a situation in which the defrauded cannot properly recognize the meaning or content of his/her own dispositive act, or preventing the defrauded from recognizing the consequences of his/her own act. Accordingly, the defrauded is not aware of the consequences of his/her act of signing or sealing the instrument. The intrinsic nature of fraud is to use a defective dispositive act by the defrauded. In the case of signature swindling, the defect lies in the process of declaring his/her intent itself.

In such a case of signature swindling, even if the defrauded did not properly recognize the content of the dispositive document and the intent objectively and externally perceived through the dispositive document was inconsistent with the intent of the defrauded by signing or sealing it on the dispositive document without properly recognizing the content of the dispositive document, it may be said that the dispositive document, the object of which is the transfer of property and pecuniary advantage, has been prepared by the defrauded. As such, if the defrauded signed or sealed an instrument giving rise to an effect different from his/her intent as a result of the actor’s deception, thereby incurring property damage in accordance with the content of the dispositive document, then the act of the defrauded who signed or sealed the dispositive document constitutes dispositive act in the context of fraud. In addition, even though the defrauded did not recognize the specific content and legal effect of the dispositive document, that is, even if the defrauded did not have knowledge of the act of signing or sealing the dispositive document by signing or sealing it on a document, the dispositive intent of the defrauded is also recognized.

[Dissenting Opinion by Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Kim So-young, Justice Jo Hee-de, Justice Park Sang-ok, and Justice Lee Ki-taik] In light of the essence and structure of fraud, a dispositive act as referred to in fraud is an act controlled by dispositive intent, and such dispositive intent is naturally premised on the perception of the consequences of its own act. As a result, in the case of the so-called signature swindling case in which the defrauded signed and sealed a document which causes an effect different from his/her intent and delivers it to the actor, etc., thereby obtaining pecuniary benefits in accordance with the content of the document, even though the defrauded was aware that he/she signed or sealed the document, it is evident that the dispositive intent and dispositive act cannot be recognized, since

Whether there exists a dispositive act or intent as an element thereof is bound to be understood from the standpoint of the defrauded, who is a dispositive act, who is a dispositive act. In a case where the defrauded, by deceiving the content of the document and without any awareness about it, signed and sealed the document presented by the actor, then the document was prepared contrary to the intent of the defrauded, who is a title preparing, and the defrauded, who was unaware of the meaning of the document, was only used in the crime of forging the document in his/her name,

If an actor of a signature-taking case has committed a forged document to borrow money from a money lender who is unaware of the fact, it is also difficult to conclude that fraud with respect to a money lender is established, taking into account the fact that there is sufficient room for the establishment of fraud with respect to the money lender. Moreover, in such a case, it is questionable whether it is reasonable to punish the actor by deeming that fraud with the landowner as the victim is established, separate from fraud with respect to the money lender. If the actor forged the document under the name of the landowner with the intent to acquire money from the first time, the document forgery following the crime of signature-taking shall be deemed a means for a series of fraud by deceiving the money lender through deception or an act included in the act of execution thereof.

In full view of these circumstances, in order to recognize a dispositive act in fraud, there is a need for subjective perception by the defrauded on the consequences of the disposition. In the case of a signature swindling case, the defrauded does not have any awareness of the content and legal effect of the instrument signed or sealed by himself/herself, and therefore, it is right to deny dispositive intent and the dispositive act based thereon

[3] In a case where the defendant et al., who is the land owner and seller Gap et al., signed and sealed a document necessary for land transaction permission, etc. and received a certificate of personal seal impression, and used it to set up a collateral security contract with the defendant as debtor Eul et al. and acquired pecuniary profits by borrowing money, the case held that the court below acquitted Gap et al. of the charges of fraud on the ground that the defendant et al. did not have an intent to dispose of property by setting up a disposal act on the ground that there was no intent to dispose of the property by falsely knowing that there was a mistake in the land transaction permission as a result of a fraudulent act by the defendant et al., and signing or sealing it on the document, which is a disposal document, was a disposal act as stated in fraud, even if the defendant et al. did not know that there was any outcome of preparing a document with the exact contents of the document with the signature or seal affixed, and did not recognize the act of signing or sealing on the document.

[1] Articles 13, 329, and 347 of the Criminal Act; Articles 2 subparag. 2, and 15-2(1)1 of the Special Act on the Prevention of Loss from Telecommunications-based Financial Fraud and Refund of Loss / [2] Articles 13, 231, and 347 of the Criminal Act / [3] Articles 30 and 347(1) of the Criminal Act; Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 11304, Feb. 10, 2012)

[1] Supreme Court Decision 82Do3115 delivered on February 22, 1983 (Gong1983, 629), Supreme Court Decision 83Do295 delivered on February 14, 1984 (Gong1984, 475) Supreme Court Decision 87Do1042 delivered on October 26, 1987 (Gong1987, 1829) (amended) Supreme Court Decision 94Do1487 delivered on August 12, 1994 (Gong1994, 2320), Supreme Court Decision 9Do1326 delivered on July 9, 199 (Gong199Ha, 1681) (amended on January 26, 2006), Supreme Court Decision 2008Do16104 delivered on April 16, 201 (amended on January 26, 2006)

Defendant

Prosecutor

Attorney Kim Tae-tae

Seoul High Court Decision 2016No744 decided August 17, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to each of the primary facts charged among the non-guilty parts

A. Fraud is established by deceiving another person and omitting it into mistake, and thereby inducing the defrauded to perform a dispositive act, thereby obtaining property or pecuniary gains. Therefore, in order to establish fraud, there is a deception by the actor, mistake on the part of the defrauded and the dispositive act arising therefrom, and acquisition of property or pecuniary gains by the actor, etc., and there is a causal link among them (see, e.g., Supreme Court Decisions 89Do346, Jul. 11, 1989; 2000Do155, Jun. 27, 2000).

In fraud, a dispositive act is an intermediate intermediate and linked to the mistake on the part of the defrauded by deception of the actor and the acquisition of property or pecuniary gain by the actor, while the intrinsic characteristic of the acquisition of property by means of the victim’s act in error is to distinguish the acquisition of property from the acquisition of property by means of seizure, not by the act of the victim, but by the act of the victim. Considering the function and function of the dispositive act, in case where it is possible to deem that the actor, etc. acquired property or pecuniary gain by means of any act based on the intent of the defrauded

B. However, the Supreme Court has previously held that, with respect to this dispositive act, the defrauded ought to have subjective awareness of the consequences of the dispositive act, namely, the dispositive intent, and there should be objectively controlled acts (see, e.g., Supreme Court Decisions 87Do1042, Oct. 26, 1987; 99Do1326, Jul. 9, 199; 201Do769, Apr. 14, 201). Accordingly, even if the victim had committed an act of causing property damage by deceiving the victim, fraud is not established because the dispositive act cannot be recognized unless there is a perception of the results of the dispositive act arising therefrom.

However, fraud is a crime in which the actor, as a means of deception, has the defrauded enter the defrauded into mistake, so that he/she can perform a dispositive act under the knowledge that his/her own act would bring about a certain consequence. If the defrauded accurately recognizes the consequences of his/her own act, it means that he/she would not be subject to deception or that he/she would not be subject to mistake due to deception, and therefore fraud cannot be established. Therefore, the previous view that the dispositive intent may be recognized only when the defrauded becomes aware of the consequences of the disposition. The detailed reasons are as follows.

(1) Fraud is established when property is transferred by a dispositive act following the defective intent of the defrauded. Therefore, a dispositive act is not only the act by the defrauded, but also by the intent of the defrauded even if it is defective. As such, an act by a person without mental capacity or an act performed under an influence cannot be a dispositive act. In this respect, the dispositive intent is a subjective element of a dispositive act.

In fraud, the dispositive intent of the defrauded is a defective intent formed in the state of mistake due to deception, and thus, there is an incomplete or defective intent. It is reasonable to say that the consequences are inconsistent with the subjective perception by the defrauded on the legal or economic effect of the dispositive act, and this is the intrinsic nature of fraud. Therefore, it is sufficient that the dispositive intent has the awareness that the defrauded, who is in error, has committed an act, is aware that he/she has committed an act, and it is not necessary to recognize

(2) As an element for the establishment of fraud, deception means an act contrary to the good faith principle that should be widely observed in transactional relations causing mistake to another person. Mistake means an perception that is inconsistent with the facts. Whether it is related to a fact, whether it is related to a legal relationship, and is related to the legal effect or not (see, e.g., Supreme Court Decisions 83Do2995, Feb. 14, 1984; 2005Do1160, Jan. 26, 2006). In addition, the perception of the defrauded, which is inconsistent with the fact, is not limited to the motive, intent, and purpose of the dispositive act, or is related to the dispositive act itself. Therefore, even if the defrauded was unaware of the meaning of his/her act or omission as a result of deception, and was unaware of the consequences of such an act, it should be deemed that there is a dispositive act by the defrauded and the dispositive intent corresponding thereto, if he/she had caused property damage.

On the contrary, if a dispositive intent can be recognized only when the defrauded is aware of the consequences of his/her own act, it would be more likely that the dispositive intent would be denied, as the dispositive intent would not be recognizable to the extent that the dispositive intent would be grossly neglected by the defrauded to the extent that he/she would not be aware of the consequences of his/her own act. This is difficult to accept.

(3) In examining the existence of the victim’s intent of disposition, it is unreasonable to interpret that the actor’s intent is recognized only when the victim knew of the result of the act of disposal.

Article 13 of the Criminal Act provides, “The act performed without recognizing the facts which comprise the constituent elements of the crime shall not be punishable.” This is an expression of the principle of accountability to punish only the act that may be attributed to the responsibility of the actor by recognizing the facts that the actor is the constituent elements of the crime. Therefore, in order to recognize the actor’s criminal intent in fraud, it is necessary to recognize all the constituent elements of fraud, namely, deception by the actor, mistake on the part of the defrauded, dispositive act following the mistake on the part of the defrauded, and acquisition of property or pecuniary gain by the actor. Ultimately, the perpetrator’s criminal intent can only be recognized only when he/she knows the consequences of the act, i.e., acquisition of property

However, fraud is not established if the defrauded, who is the victim, knows the actor’s deception or his/her own mistake in consequence thereof. Rather, if the victim knows the actor’s deception or his/her own mistake in consequence thereof, fraud cannot be established. Likewise, there is no reason to deem the victim to be aware of the acquisition of property or pecuniary advantage by the actor, etc., which is the result of the dispositive act. Likewise, the subject matter of awareness of the actor’s criminal intent is limited to the dispositive act itself among the elements establishing fraud and the subject matter of awareness of the victim’s dispositive intent. This is because the victim’s intent is irrelevant to the principle of accountability, contrary to the actor’s criminal intent, and is irrelevant to the subjective element of

The grounds for deeming the victim’s dispositive intent as necessary are that the victim’s dispositive act can be deemed as an act committed by the victim when it is recognized that the victim was aware of the dispositive act. In other words, the function of the victim’s dispositive intent in fraud is merely a subjective confirmation corresponding to the objective aspect of the existence of the victim’s dispositive act. Therefore, once the victim knowingly recognized a certain act deemed a dispositive act, dispositive intent may be deemed as the victim’s dispositive intent. Ultimately, the victim does not need to be aware

C. In conclusion, in light of the intrinsic nature and structure of fraud, the function and role of dispositive intent as well as an intentional element thereof, and the meaning of deception and mistake, even though the defrauded did not have knowledge of the meaning and content of dispositive act, if the commission or omission by the defrauded is deemed as a property dispositive act directly incurring property loss, and if the defrauded knowingly performed such act or omission, dispositive intent corresponding to the dispositive act is recognized. In other words, the defrauded does not necessarily have to be aware of the consequences of his/her act or omission.

In contrast, Supreme Court Decisions 87Do1042 Decided October 26, 1987; 99Do1326 Decided July 9, 199; 201Do769 Decided April 14, 201, etc. that held that a dispositive act as referred to in fraud requires recognition of the consequences of the disposition by the defrauded to be recognized, shall be modified to the extent inconsistent with this judgment.

D. Furthermore, in cases where a dispositive act by the defrauded is conducted in the form of a juristic act or declaration of intent, it is examined how to grasp the dispositive act and dispositive intent in the context of inconsistency with the intent of the defrauded expressed objectively and objectively in the inside

(1) The so-called “signing fraud” at issue in the instant case refers to a case in which the defrauded signed or sealed an instrument different from his/her own intent due to a mistake induced by deception, thereby causing property loss. Here, the essence of the actor’s deception lies in either using a situation in which the defrauded cannot properly recognize the meaning or content of his/her own dispositive act, or preventing the defrauded from recognizing the consequences of his/her own act. Accordingly, the defrauded is not aware of the consequences of his/her act of signing or sealing the instrument. The intrinsic nature of fraud is to use a defective dispositive act by the defrauded, and in the case of signature swindling, the defect lies in the process of the formation of his/her own dispositive intent.

(2) In such a case of signature swindling, even if the defrauded, without properly recognizing the content of the instrument, signed or sealed by the defrauded on the instrument and the intent objectively and externally perceived through the instrument, it may be deemed that the act by the defrauded would result in the acquisition of property or pecuniary advantage by the actor, etc. by the act of the defrauded, etc., may be deemed as having been executed by the defrauded. As such, if the defrauded, as a result of a mistake caused by the actor’s deception, signed or sealed on the instrument giving rise to an effect different from his/her intent in mind, thereby incurring property loss arising from the content of the instrument, the act by the defrauded who signed or sealed the instrument constitutes a dispositive act in fraud. In addition, even though the defrauded did not recognize the consequences of the disposition, namely, the specific content of the document, and its legal effect, the dispositive intent by the defrauded is also recognized, insofar as he/she was aware of the act of signing or sealing the instrument by signing or sealing it on a document.

E. Review of the reasoning of the lower judgment, the evidence duly admitted and examined by the first instance court and the lower court reveals the following facts.

(1) On November 29, 2010 and December 3, 2010, the Defendant and Nonindicted Party 1, etc.: (a) attached the documents necessary for land transaction permission, etc.; and (b) attached the victim Nonindicted Party 2, a seller of each land as indicated in the judgment below, to sign and seal a mortgage contract, etc.; (c) obtained the victim’s certificate; and (d) used the same to set the Defendant as the debtor with regard to each of the above lands owned by the victim as the maximum debt amount, and borrowed KRW 70 million.

(2) In addition, on December 29, 2010, the Defendant and Nonindicted 1, etc.: (a) attached the victim Nonindicted 2 and Nonindicted 4, the seller of each land as indicated in the judgment of the court below, to sign or seal the agreement on the loan repayment, etc. stating the purport of offering the said land as collateral; (b) obtained the victims’ certificate of personal seal impression; and (c) used the same to set up a mortgage on each of the above lands owned by the victims to Nonindicted 5 with the Defendant as the debtor, and borrowed KRW 120 million.

(3) Meanwhile, the Defendant and Nonindicted 6 provided the land owned by the victim Nonindicted 7 as collateral and gathered the remainder of 100 million won after borrowing the down payment of KRW 30 million to their own use. On April 5, 2011, the Defendant suggested the victim to sell the land to KRW 300 million, and demanded the victim to set up a right to collateral security with respect to borrowing the down payment of KRW 30 million and obtained the consent of the victim. ② On April 7, 2011, the Defendant and Nonindicted 6 received an application for registration of collateral security with the intent to obtain a signature and seal of KRW 30 million from the victim as well as the documents necessary for setting up a right to collateral security with respect to loans of KRW 30 million, the maximum debt amount, KRW 30 million, the debtor, and Nonindicted 8, the debtor, the Defendant, and the victim of the right to collateral security with the signature and seal affixed to each of the aforementioned parties.

F. Examining these facts in light of the legal principles as seen earlier, the victim non-indicted 2 and non-indicted 4 committed an act resulting in property damage by falsely knowing or sealing the documents necessary for land transaction permission, etc., and thus, the above act of the victims constitutes a disposal act in fraud, and the victim non-indicted 7 also committed an act resulting in property damage by signing or sealing the documents, etc., knowing the fact that the defendant et al. mistakenly knew that it was necessary to obtain a loan of KRW 30 million as a security document, and as a result, the act of the victim also constitutes a disposal act in fraud. In addition, even if the victims were not aware of the exact contents of the documents signed or sealed and what result in the preparation of such documents, even if they did not have any knowledge of the exact contents of the documents signed or sealed, it is recognized that the act of signing or sealing them was a disposal act in writing with the knowledge of a land transaction permission or agreed collateral security agreement and on the documents stated therein, so long as they were aware of the act of signing or sealing them.

G. Nevertheless, the lower court determined otherwise by misapprehending the legal doctrine on disposal in fraud, thereby adversely affecting the conclusion of the judgment, that it cannot be deemed that there was a disposal act of the victims on the land owned by the victims solely on the ground that the victims did not intend to establish a collateral security right. Accordingly, the lower court erred by misapprehending the legal doctrine on disposal in fraud, thereby adversely affecting the conclusion of the judgment. The allegation contained in

2. Scope of reversal

For the foregoing reason, the judgment of the court below should be reversed as to each of the primary charges on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), fraud on December 29, 2010, and fraud on April 7, 2011. As long as each of the primary charges is reversed, each of the aforementioned primary charges shall be reversed together with the charges on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and each of the ancillary charges on each of the fraud. Furthermore, the court below reversed as above, on April 7, 2011, considered the ancillary charges on the crime of fraud as one of the concurrent crimes under the former part of Article 37 of the Criminal Act, and sentenced the remaining guilty part as to the crime. Accordingly, the judgment of the court below shall be reversed in its entirety.

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Kim So-young, Justice Jo Hee-de, Justice Park Sang-ok, Justice Park Sang-ok, and Justice Lee Ki-taik. The concurrence with the Majority by Justice Park Poe-dae, Justice Kim Chang-suk and Justice Kwon Soon-il, Justice Kim Shin, and Justice Kim

4. The dissenting opinion by Justice Lee Sang-hoon, Justice Kim Yong-deok, Justice Kim So-young, Justice Jo Hee-de, Justice Park Sang-ok, and Justice Lee Ki-taik as to the majority opinion on each of the primary facts charged

A. The Majority Opinion, even though the defrauded did not have knowledge of the meaning or content of a dispositive act, if the commission or omission by the defrauded is deemed as a property dispositive act directly incurring property loss, and the defrauded knowingly committed such act or omission, dispositive intent corresponding to the dispositive act is recognized, and the dispositive intent corresponding to the dispositive act is not recognized only when he/she recognizes the consequences of his/her commission or omission. However, the Majority Opinion’s logic that the dispositive intent was modified in order to punish the signature swindling case is difficult for the following reasons.

(1) thief is acquiring property by taking advantage of a criminal act’s taking advantage of the criminal act, and fraud is divided into the basis of a dispositive act. In this sense, fraud is one’s own damage crime, and larceny is one’s own damage crime. In order to satisfy the essence of a dispositive act in fraud, it is essential for the victim to make a decision on the disposal of his/her own property. In other words, only an act or omission controlled by the intent formed based on the awareness that the victim’s act is related to his/her own property rights may be normatively assessed as constituting a dispositive act in fraud. A dispositive act without any awareness or intent as to the result of the dispositive act may not be contradictory to itself. In short, fraud in which the victim does not completely recognize what is related to his/her own property, is contrary to the essence of a dispositive act as a self-damage crime.

In the past, the Supreme Court consistently interpreted that a dispositive act in fraud refers to a property dispositive act, and that it requires the defrauded to have the awareness of the consequences of the disposition, namely, the dispositive intent, and objectively, there is an act controlled by such intent. In addition, it is not necessary to revise it to a reasonable interpretation theory based on the nature of fraud and the outcome of an in-depth inspection of the meaning of dispositive intent as an intentional element thereof.

Ultimately, it is difficult to accept the Majority Opinion that the dispositive intent and dispositive act can be recognized in a case where the defrauded does not have awareness of the consequences of the disposition.

(2) In order to recognize a dispositive act in fraud, the Majority Opinion also deems that the dispositive intent, which is a subjective intent of the defrauded, is necessary. However, even without further discussing the intrinsic nature of fraud, the concept of “dispositive intent” itself is one of the premises and intentions of the defrauded corresponding to the content of dispositive act. dispositive intent without any awareness of the consequences of dispositive act cannot be a subjective intent of dispositive act.

The Majority Opinion argues that there is sufficient awareness in a dispositive act that the defrauded, who is in mistake, commits an act or omission evaluated as a property dispositive act. However, considering the practical meaning of the Majority Opinion, it is merely true that the defrauded who committed the act is only a factual act to the extent that it is distinguishable from an act by a person without mental capacity or an act without mental capacity. However, it cannot be deemed a dispositive act as an “dispositive act” corresponding to a dispositive act.

As can be seen, the Majority Opinion leads to confusion between dispositive intent and the defrauded’s general intent of act in fraud. Although dispositive intent is necessary, the meaning of dispositive intent is independently interpreted to the extent that it does not fit the concept of dispositive intent. In light of this, the Majority Opinion’s logic is unreasonable.

(3) The elements of fraud should be interpreted in accordance with the nature of fraud, and it is difficult to recognize its legitimacy. As mentioned earlier, the perception of the consequences of the disposition on the part of the defrauded is naturally required in the interpretation of a dispositive act separate from larceny. In other words, according to the nature of fraud and the meaning of the dispositive intent derived from this, fraud can only be established in cases where the defrauded, who is erroneous, performs a dispositive act with awareness of the meaning and consequences of his/her own act, is limited to the motive, intent, and purpose of the dispositive act, and the mistake on the dispositive act itself, which does not have awareness of the consequences of the disposition, cannot be included in the mistake in the interpretation of fraud. In the end, it is difficult to accept the interpretation theory of the dispositive act as well as the interpretation theory of the dispositive act, without considering the nature and characteristics of fraud. In other words, it is difficult to accept the interpretation theory of the Majority Opinion as is necessary after the mistake of the dispositive act.

(4) According to the Majority Opinion that it is unnecessary to interpret that there is no awareness of the consequences of the disposition on the part of the defrauded in the judgment of dispositive intent of fraud, it is unclear whether fraud is established or not, and the scope of punishment is also likely to be expanded. It is doubtful whether it may be clearly distinguished from the fraud and the crime other than fraud without considering the awareness of the defrauded in a large number of crimes in which the act of deception by the actor was involved. For example, in the so-called ---called - which has been taken over from the defrauded by means of a false representation that he/she would be blind, and brought about it without taking account of the awareness of the defrauded, the Supreme Court has been punished as larceny by deeming that liability or precious metal still exists under the possession of the defrauded, regardless of the act of delivery by the defrauded, deeming that the act of taking possession by the Defendant is still in possession on the part of the defrauded (see Supreme Court Decisions 82Do3115, Feb. 22, 1983; 94Do1487, Aug. 12, 1994).

(5) Article 2 Subparag. 2 of the Special Act on the Prevention of Loss and Refund of Loss Caused by Telecommunications-based Financial Fraud (hereinafter “Telecommunications-based Financial Fraud Refund Act”) defines that the term “telecommunications-based financial fraud” refers to any of the following acts in order to take property benefits or to have a third party gain property benefits by deceiving or threatening another person by using telecommunications under subparagraph 1 of Article 2 of the Framework Act on Telecommunications, and one of the following acts is “a transfer or transfer of funds,” and Article 15-2(1)1(hereinafter “instant penal provision”) provides that a person who, for the purpose of telecommunications-based financial fraud, had another person enter information or order into an information processing device, such as a computer, shall be punished for not more than 10 years, or a fine not exceeding KRW 100 million. The instant penal provision provides that a person who, in turn, induces a victim to return or transfer money from his account to his account to scambling, thereby inducing the victim to be punished for transfer of money from his account or transfer of money to s money.

As can be seen through the process of the enactment of the instant penal provision under the Telecommunications Fraud Refund Act, if the defrauded intends to punish an actor who acquires pecuniary benefits through illegal deception that prevents him/her from recognizing the consequences of his/her own act, it would be the right solution to make a separate legislation instead of arbitrarily changing the foundation of the established legal principles on fraud as the majority opinion.

B. In addition, in the case of signature swindling fraud at issue in this case, even if the defrauded signed or sealed without properly recognizing the content of the dispositive document, insofar as property damage arising from the content of the dispositive document was caused, and the defrauded was aware of the act of signing or sealing the dispositive document by himself/herself by signing or sealing the dispositive document, fraud is established as a dispositive act by dispositive intent is recognized. However, even if the dispositive act is not acceptable for the following reasons.

(1) As underlined, in light of the nature and structure of fraud, the term “dispositive act in fraud” refers to an act controlled by the dispositive intent, and such dispositive intent is naturally premised on the perception of the consequences of his/her own act. As a matter of course, in the case of the so-called signature swindling case in which the actor, etc. acquires pecuniary benefits arising from the content of the document by signing and sealing the document which causes any effect different from that of the intent of deliberation, and delivering it to the actor, etc., even though the defrauded was aware that he/she had signed or sealed the document, it is clear that the dispositive intent and dispositive act cannot be recognized, since there was no awareness of the consequences of the disposition,

(2) (A) Whether there is a dispositive act in property or an dispositive intent as an element thereof is bound to be understood from the standpoint of the defrauded, who is a dispositive act. If the defrauded, by deception, signed and sealed the document presented by the actor without any awareness of the content of the document, then the document was written contrary to the intent of the defrauded, who is a nominal title, and the defrauded, who was unaware of the meaning of the document, was only used in the crime of forging the document in his/her name (see, e.g., Supreme Court Decision 2000Do778, Jun. 13, 200). It cannot be said that there was a dispositive act based on

Indeed, as in the instant case, in the event that an actor had a landowner sign and affix a seal to a mortgage contract, etc. by deceiving the content of the document, thereby using it, the act committed by the defrauded is merely the signature and seal affixed to the document indicated as a mortgage contract, and there was no awareness of the intent to prepare the document with such content. The document is merely a forged document prepared without the intent of the defrauded, and even if an act, such as the creation of a mortgage, was committed by using the forged document, the act or its consequence is nothing more than the awareness or the intent of the defrauded, but rather is contrary to the intent of the defrauded, and it cannot be said that there was an dispositive intent against a third party. Ultimately, in relation to the defrauded, the consequences are subject to removal, and it cannot be said that the defrauded dispositive act against the third party.

(B) The Supreme Court held that, in the case of so-called “personal funeral taking-off case,” where only a part of the land purchased is to be divided and transferred by the owner, the owner obtained a seal imprint certificate and completed the registration of ownership transfer concerning all of the land, the registration concerning the portion not purchased is not constituted fraud on the ground that there is no disposal act by the victim, the owner (see Supreme Court Decision 81Do1732, Mar. 9, 1982, etc.).

In the above-mentioned case where the Defendant, an actor, prepares a document necessary for the transfer of ownership without the involvement of the landowner, but all of the signature and seal cases, as in the instant case, by deceiving the landowner and allowing the landowner not aware of the contents of the document to sign and seal the mortgage contract document, the Defendant’s act is nothing more than one of the types of crimes committed under Article 35 of the Documents, and the substance is not the fraud, but the document in the name of the landowner, which is not the fraud, is forged, and thus, there is no substantial difference between

(C) According to the Majority that recognizes fraud in a signature swindling case, the establishment of fraud is either unclear or different depending on the degree of entry in the document, whether the document is completed, or depending on the method of signature by the defrauded, thereby causing confusion and unreasonable consequences.

Even according to the Majority Opinion, in order to recognize the dispositive intent of the defrauded, it is unclear whether the content of the document should be specified to some extent at the time when the defrauded signed and sealed the document. On the other hand, in the event that the signature on the document was signed and sealed by the defrauded, it is difficult to understand whether fraud can be established only if there is any description of the elements constituting the content of the document at the time of signing and sealing the document, namely, the indication of the mortgagee or the debtor, the maximum amount of debt, the content and scope of the secured obligation, and even if some of the items were omitted, it is difficult to understand whether

Furthermore, it is difficult for the Majority to distinguish between the signature swindling case recognizing the existence of dispositive intent and the case in which the actor has been granted the authority to act on behalf of the defrauded, and thus, the scope of the punishment of fraud is ambiguous or excessively expanded. Even according to the Majority, in cases where the defrauded, who was deceptiond from the actor, i.e., let the actor act on behalf of the actor in the seat, it can be evaluated as the act of document drawing up by the defrauded, and thus, fraud may be established as well as the case of signature swindling. However, in cases where the proxy signing was performed without the involvement of the defrauded, even if the actor obtained prior permission from the defrauded on behalf of signing the land transaction permit document in advance from the defrauded, and then signed on behalf of the defrauded in a mortgage contract, which is a disposal document, which is a document entirely different from the contract signing site without the defrauded, it cannot be easily seen that the criteria for distinction is what is what the crime of fraud is established, or whether only the document

(3) If an actor of a signature swindling case has reached the point of borrowing money from a money lender who is unaware of the fact by using a forged document, it is difficult to conclude that fraud with respect to a money lender is likely to be constituted. Moreover, in light of the fact that fraud with respect to a landowner is not constituted, and thus, it would be difficult to readily conclude that the act of fraud with respect to a landowner would interfere with the appropriate exercise of penal authority or would result in imbalance of punishment. Rather, in the case of a signature swindling case, inasmuch as the document forgery was made with the involvement of the landowner, who is the defrauded, or with the involvement of the intent, the actor’s act or the act of forging the document itself, it is not deemed that the punishment

Furthermore, in such a case, it is questionable whether it is reasonable to punish a person who owns land as a victim, separate from fraud against a money lender. If the actor forged a document under the name of the landowner with the intent to acquire money from the first time, the document forgery following the crime of signature swindling should be deemed a means for a series of fraud by deceiving the money lender through deception against the money lender or an act included in its execution. Therefore, since the right to collateral security acquired by the actor overlaps with the economic value of the borrowed money, it is difficult to judge that each pecuniary gain acquired by the actor in the course of a series of crimes overlaps with the economic value of the borrowed money, and it is difficult to judge that each of the pecuniary gain acquired by the actor in the course of a series of crimes is separate from the other party to the deceptive act, and the signature swindling act is already included in the provisional evaluation of the crime of fraud against the money lender. It is more true in view of civil law, taking into account the difficulty to deem the Defendant,

Any act of acquiring property by means of deception may not be subject to criminal punishment, and even if such act does not constitute the elements of fraud, it shall not be subject to criminal punishment on the ground that the act is highly punishable. If a punishment is imposed on the part of fraud solely on the ground that the act is a fraudulent act with a high penalty, even though the defrauded did not have awareness of the consequences of the disposition, it would damage the function of guaranteeing the freedom of criminal law.

C. In full view of these circumstances, in order for a dispositive act to be recognized in fraud, a subjective perception by the defrauded as to the consequences of the disposition is necessary. In the case of a signature swindling case, the defrauded does not have any awareness as to the content and legal effect of the instrument signed or sealed by himself/herself, and therefore, it is right to deny dispositive intent and the dispositive act based thereon.

D. In the same purport, the lower court did not err by misapprehending the legal doctrine regarding the disposal act or disposal intent of fraud, contrary to what is alleged in the grounds of appeal, on the grounds that it cannot be deemed that there was a victims’ property disposal act on each of the primary facts charged, on the grounds that the victims, who are the owners of each land in the judgment below, did not have an intent to establish a collateral security right on each of their own land

For the foregoing reasons, we express our concurrence with the Majority Opinion.

5. Concurrence with the Majority by Justice Park Poe-dae

The core of a legal act or expression of intent under the Civil Act is an effective intent. This is because the perception of an actor on the legal effect that the person intends to achieve by the act is premised. The logic that a disposal act by deception in fraud requires recognition of the outcome of the act is similar to that of a legal act under the Civil Act. However, the defrauded’s disposal intent is bound to entail mistake in its nature. Such mistake constitutes an error in the outcome different from that of another person’s deception, regardless of the legal effect of a disposal act, by mistake in an economic effect, or by mistake on the other person’s deception. Such an expression of intent is the representative of an expression of intent. Inasmuch as an expression of intent in this case is inevitable, the signature acquisition, which is at issue, falls under a mistake in the indication of an intent, and thus, constitutes an act of deception in accordance with the legal principle as seen above. However, it appears that there is no disagreement between the intent and the actual intent of an expression of intent in the application for registration, which is contrary to the principle of inconsistency with the intention of an expression of intent in the Civil Act.

On the other hand, the discussion on the expression of intent under the civil law is about the establishment of fraud by a deceptionr under the criminal law, and it is reasonable to follow the normative interpretation of the act of fraud as a matter of course when considering the existence or absence of the act of fraud in the context of fraud. It is the original intent of the deceptionr to allow the deceptionr to make an act of deception inconsistent with the inner intent, and it is contrary to the intention of the deceptionr to make an act of deception in the absence of the internal intent even though the act of deception was conducted. It is against the fundamental purpose of fraud and the principle of criminal liability.In accordance with the normative interpretation of the interpretation of the expression of intent, it is reasonable to follow the normative interpretation of the act of deception as a matter of course when considering the existence or absence of the act of deception in the context of fraud. It is not possible to interpret that the act of deception was caused by the disagreement with the intention and the act of deceptionr, which is more favorable to the deceptionr, and it is not possible to interpret the act of deception as a factor favorable to the deceptionr.

In short, in the theory of legal acts under the Civil Act, which has no choice but to be the core index of the act of intent, the intent of effect shall be deemed the object of normative evaluation rather than the natural concept of the actor’s internal intent. In other words, in the theory of the Civil Act, the expression of intent is not a “unexistence” in the original form on the ground that there is no intentional intent as indicated on the grounds that there is an error in the indication due to the disagreement between intent and indication. Moreover, in the theory of the Civil Act, even if the intent of the party’s internal intent is confirmed to be different from the act of expressing intent, it does not seem to be the content of the said juristic act. In the face of the country where the act of disposal of the victim is at issue in relation to fraud under the Criminal Act, deeming that the victim’s act of disposal can be recognized only if the victim’s intent is more strict than the concept of intent of effect under the Civil Act, and there is no reason to demand more strictly in the crime of fraud. In short, the concept of the act of disposal in the criminal case is not reasonable as a strict interpretation of criminal intent.

On the other hand, when a declaration of intent by mistake is made by deception, whether it constitutes a fraud or a declaration of intent by mistake may vary in the area of civil law discussions. However, in the context of criminal law issues as to the establishment of fraud, whether it is possible to revoke the said declaration of intent in a case where there is a gross negligence on the registrant. However, in the context of criminal law, there is no obvious benefit that it falls under fraud, whether it is a mistake in mistake, or mistake in motive or mistake in mistake. The fact that the victim’s act of disposal in fraud ought to be a defective declaration of intent due to deception is mainly an issue in terms of the causal relationship between the Defendant’s deception and the victim’s act of disposal. Moreover, it does not affect the establishment of fraud depending on which the victim has made such act of disposal with any internal deliberation. Moreover, there is no reasonable reason to exclude the scope of disposal in fraud only when there is a mistake in the indication of intent by fraud and “an expression of intent by mistake” under the Civil Act.

However, as seen in the instant case, signature swindling as in the instant case does not merely mean a signature in blank. The purport of the document itself is specified in the purport of the act of disposal of property by deceiving the victim as a document different from that of the actor. In other words, signature at this time is not an act of false appearance, but an act of externally expressing the intent to constitute the act of disposal of property by combining the content of the document. However, the act of deception is merely an act of externally expressing the intent of the act of disposal of property in combination with the content of the document. However, the actor did not recognize the intent of the act of disposal. If the content of the act of disposal of property is written in writing as a disposal document, barring any special circumstance, if the objective meaning of the language is apparent, it is a established precedent that the existence and content of the expression of intent should be recognized as a disposal document in accordance with the language and text, and there is no reason to apply the principle differently. It is no example that the act of disposal of property is established with a third party by means of a document signed with signature signature and seal, and thus it is not consistent with the logic of criminal law.

The Supreme Court held that an act of larceny, which was obtained and driven as a trial run and fleded, constitutes a crime of larceny, is not a act of disposal with the appearance of transfer of the right to dispose of property when considering the situation before and after the delivery of Otoba. The case where the act of delivery of Otoba does not constitute an act of disposal with the appearance of the disposal document, since the external appearance of the act is the content of the disposal document, it cannot be the same as the case of

Therefore, as long as the previous precedents require a strict meaning of perception of the result of the disposition to the disposal of the defrauded, it is not consistent with the criminal law regulatory framework, and it is not harmonious even from the framework of the theory of legal act under civil law. In the context of fraud, it is reasonable to view that there is the victim’s disposal inasmuch as the act of expression is recognized as an effective concept of normative evaluation based on the act expressed in the general theory of declaration of intent under civil law, and such act of expression is based on the defective intent of the victim. This conforms to the essence of the theory of conduct that is governed by civil law and criminal law.

We express our Concurrence with the Majority Opinion.

6. Concurrence with the Majority by Justice Kim Chang-suk and Justice Kwon Soon-il as follows.

A. In the past, in order to have a dispositive act on the part of the defrauded in fraud, the Supreme Court has to have the dispositive intent corresponding thereto. However, to recognize the dispositive intent on the part of the defrauded, the defrauded ought to be aware of the act itself evaluated as a dispositive act, as well as the consequences therefrom. However, according to this, in order to recognize the dispositive intent on the part of the defrauded, the act to be punished as a dispositive act is likely to be excluded from the scope of the establishment of fraud, and that such a result

(1) The Dissenting Opinion argues that, as a reason for maintaining the previous opinion, the victim’s intent to make a decision on the disposal of his/her own property is essential in order to meet the essence of the disposal act as an act of self damage in fraud, and that only the act or omission controlled by the victim’s intent formed based on the awareness that his/her act is related to his/her own property right can be evaluated as a disposal act in

If a person intends to assume the responsibility for the result of a dispositive act to vest in the person who performed the dispositive act, the person who performed the dispositive act ought to be aware of the result of the dispositive act. It is natural in view of the principle of accountability that the responsibilities cannot be attributed if the actor did not recognize the fact that constitutes the elements of a dispositive act. However, deeming the victim’s dispositive intent as necessary in fraud does not intend to vest in the dispositive act in

The most rare feature of fraud is that the transfer of property directly takes place by the victim’s act of disposal. However, in order to establish a dispositive act by the victim, the objective aspect that the act that can be evaluated as a dispositive act was conducted by the victim is insufficient, and the corresponding dispositive intent should also be recognized. Therefore, the function of dispositive intent does not go beyond the meaning of confirming that the victim was aware of the act that may cause property damage to the victim and bring about property or pecuniary gains to the perpetrator, etc. In this regard, it is sufficient to recognize the victim as a dispositive act that can be evaluated as a dispositive act. From this perspective, the Majority Opinion considers that the subject of recognition as a dispositive intent is sufficient and it does not need to be expanded to extend the outcome therefrom. A dispositive act as a constituent element of fraud is clearly distinguishable from the outcome of the dispositive act that is the acquisition of property or pecuniary gains by the actor, etc., and its subjective element is corresponding to the objective element, and it is limited to the act that is evaluated as a dispositive act

(2) According to the previous view, if the victim conducted a disposal act without recognizing the actor’s deception or mistake caused by the act of deception, but recognizing the occurrence of the consequence, the crime of fraud is established. However, if the victim did a disposal act without recognizing the occurrence of the consequence of the disposal, then the crime of fraud is established. The Dissenting Opinion argues that such a result is consistent with the intrinsic nature of fraud as a crime of self-damage.

However, in any case, there exists a deception by the actor and a mistake by the victim, and there exists a victim’s act resulting from such mistake, and there is a property damage of the victim arising from such act. In any case, however, there is no choice but a damage to the victim’s property. Nevertheless, unless there is any awareness of the result of the disposition, fraud as a crime of self-damage cannot be established. Nevertheless, the Dissenting Opinion is understood as the logic that the freedom of decision-making by the victim cannot be deemed a legitimate exercise of the victim’s freedom of decision-making, and therefore, it cannot be deemed a crime that is established when the victim’s freedom of decision-making is transferred by the act of the victim, but the victim could not exercise his freedom of decision-making properly. In this regard, it is reasonable to exclude the case where the freedom of decision-making by the actor is more infringed due to the actor

B. The Dissenting Opinion argues that, given the nature of the dispositive intent derived from the intrinsic nature of fraud, mistake on the part of the defrauded is limited to motive, intent, and purpose, and that mistake on the “dispositive act” itself, which does not have awareness of the consequences of the disposition, cannot be included in the mistake as referred to in fraud. This assertion is nothing more than that, among the constituent elements of fraud, that mistake exists in the stage of the transfer of dispositive act, and that the scope of inclusion in mistake is limited to the existence of the dispositive act itself.

In applying the interpretation of the Dissenting Opinion that the expression of intent itself ought to be in accord with the intent of the defrauded and externally expressed thereon, it is impossible for the defrauded to recognize the dispositive intent, not by signing and sealing it with the intent to bring about the effectiveness of the document as indicated in the document, with the knowledge that the specific content of the document and the consequences of the preparation of the document would bring about. The signature swindling case is a case where the actor commits deception in the process of inducing the defrauded’s expression of intent. As such, it is difficult to find out the meaning and effect of the expression of intent to be objectively perceived based on the external expression of intent by the defrauded. However, in the context of fraud that requires the expression of intent by the defrauded, it is difficult to accept the Dissenting Opinion as the same holds true with the assumption that there is no defect by complying with the intent of the defrauded

Meanwhile, criminal law does not affect the establishment of fraud, whether it is valid, void, or void. In the case of a signature swindling case, even though it is acquired by the defrauded, an externally revealed expression of intent through the preparation of a disposal document is objectively existing. Such expression of intent is evaluated as a dispositive act that causes the effect of having the actor, etc. acquire property directly. From the perspective of civil law, even if, as a result of an error, the internal intent and the intent in indication are inconsistent with the intent in the signature or seal of the disposal document, an external act that can be perceived as such through the preparation of a disposal document through the signature or seal of the disposal document and its delivery, i.e., an expression of intent in accordance with the content of the disposal document, is clearly established. In the case of a signature swindling case, even though the defrauded was unaware of the content of the disposal document by deception of the actor, the authenticity of the disposal document is recognized as established insofar as the actor prepared the document by signing or sealing it on his/her own, and it is difficult for the defrauded to recognize that the actor did not have any property damage as an external act by means of deception.

C. (1) It is difficult to say that the establishment of fraud is unclear or the scope of punishment is unreasonable, as mentioned in the Dissenting Opinion, because the dispositive intent of fraud does not require awareness of the consequences of the disposition by the defrauded.

The Majority Opinion does not require awareness of the consequences of the disposition to the dispositive intent, but does not waive the concept of dispositive act as an element of fraud. In individual cases, it is determined whether fraud exists on the basis of the dispositive act by the defrauded, namely, the act or omission controlled by the defective intent of the defrauded, and whether there exists a property dispositive act directly incurring property damage. In other words, the previous precedents that deeming fraud as not constituting fraud as to property gains is not established, namely, the case where a hospital was absent or escaped to avoid the performance of the obligation for medical expenses (see Supreme Court Decision 70Do1615, Sept. 22, 1970), even in the case of issuing a forged promissory note in relation to the existing obligation (see Supreme Court Decision 82Do1759, Sept. 28, 1982), even without considering whether there was a perception of the consequences of the disposition by the defrauded, so it is difficult to conclude that it is a case where there was no property dispositive act by the defrauded causing property damage.

In addition, as if the Dissent were to purchase books or precious metals cited as examples by the Dissenting Opinion, the so-called “compact theft” refers only to the transfer of possession to a person who intends to purchase the goods at the time so that he/she can know about the existence of the act of disposal. The seizure of property is not due to the fact that there was an act of disposal controlled by the victim’s defective intent, but rather, the acquisition of property by the perpetrator’s additional act is not possible. Therefore, even if the existence of the act of disposal is recognized, it is difficult to establish fraud. In short, even if it is determined based on the objective and external act of delivery, it is readily known that the victim does not completely transfer possession of the goods to the actor. In short, the existence of the act of disposal can be determined depending on whether the act of disposal can be recognized, and therefore, it does not necessarily mean that the perception of the result of the disposition should be included in the perception of the act of disposal, thereby distinguishing the intent of fraud and the crime of larceny.

(2) As pointed out by the Dissenting Opinion, various punishment provisions relating to telecommunications-based financial fraud are newly established in accordance with the enactment of the Telecommunications Fraud Loss Refund Act, and there is no awareness that money is remitted or transferred to the victim. However, there is no clear ground for punishment for various types of fraud crimes using telecommunications. However, the establishment of fraud under the Criminal Act is established with the establishment of fraud under the Criminal Act, and the said punishment provisions have been newly established in order to effectively cope with scamsing crimes, and there is no interpretation that the perception of the outcome of disposition as to the recognition of the dispositive intent is necessary. In addition, even if the interpretation of the current law can be sufficiently punished as fraud, it is difficult to say that legislative resolution is necessary to reduce the scope of the establishment of fraud and to fill the gap.

D. (1) The so-called “the personal funeral case” and “the signature swindling case” are in essence different from each other. In view of the case of personal funeral service, in which the owner obtained a seal imprint certificate from the landowner, and then arbitrarily puts on the case of personal funeral service, which had completed the registration of the establishment of a neighboring mortgage in the name of a third party, there is no external expression of intent sufficient to be a dispositive act by the defrauded. In such a case, there is only the act of forging documents necessary for the registration of establishment of a neighboring mortgage in the name of the victim by using the seal acquired by the actor, and it is apparent that the act of forging documents necessary for the registration of establishment of a neighboring mortgage in the name of the victim may not be punished for fraud. On the other hand, in the case of signature swindling, there is strict external expression of intent by the defrauded by a document, etc., which constitutes a dispositive act that incurs property damage. In view of the fact that there is no expression of intent by the defrauded on the mortgage contract, the registration completed with the seal affixed by the third party cannot be cancelled as the registration

(2) In the case of the establishment of a mortgage contract as seen in the instant case, under the civil law, the victim, who is the landowner, may claim the cancellation of the mortgage contract on the ground of the mistake of the name and seal or the mistake of signature and seek the cancellation of the mortgage contract (see, e.g., Supreme Court Decisions 2004Da43824, May 27, 2005; 2006Da41778, Oct. 27, 2006). However, where the victim, who is the reporter, claims the cancellation of the mortgage contract on the ground of fraud, the cancellation is excluded if the victim, was grossly negligent (see, e.g., Article 109(1) proviso of the Civil Act). Furthermore, where the third party, who was the mortgagee, knew or could have known that the third party was guilty of the intention of fraud, the cancellation of the contract cannot be cancelled as a bona fide third party (Article 110(2) of the Civil Act).

Ultimately, it is not always possible to recover rights by cancelling the registration of creation of a neighboring mortgage on one’s own land on the ground that the victim’s signature or seal was stolen. Therefore, the criminal policy needed to protect the landowner as the victim of fraud is clearly recognized.

E. (1) In the case of signature swindling, the circumstance that the crime of fraud against a lender of money may be established cannot be the grounds for denying the establishment of fraud against a landowner. The two frauds vary depending on the victim, and the content of deception is different. The property acquired as a result of the crime is also money in the case of the former; while the latter is money in the case of the latter, the property acquired as a result of the crime is money in the case of the latter; and there is no relationship between the two crimes that are either impossible or rejected. Moreover, there is no relationship between the two crimes that are accompanied by the crime of signature swindling with a landowner by combining the crime of fraud against a lender in general and form with the crime of fraud against a lender. Nevertheless, the Dissenting Opinion points out the fact that there was a result of infringement of other legal interests among many victims depending on the remaining crimes that the actor acquired money as a result of the crime.

In addition, in the event that a disposal document, in which the expression of intent to give a gift to an offender or a third party or to exempt a third party or to have the defrauded sign or affix a seal on the property, there is no room to establish a separate crime of fraud other than fraud in which the defrauded is the victim. Moreover, as in the instant case, there is no sufficient proof in the criminal procedure procedure as in the instant case, so it may not be established as a crime of fraud against a money lender, and if the security right contract is deemed valid in a civil manner, there is a possibility that a money lender may not be a problem of criminal responsibility of the offender. Unlike the assertion by the Dissenting Opinion, there is a concern that there may be a gap in punishing the offender

(2) In the case of signature swindling, the penal authority cannot be deemed to be appropriately realized on the ground that the actor can be punished for the crime of forging a private document. The substance of a signature swindling case is the crime of acquiring property through deception. Nevertheless, not punishing the core and essential part of such a provisional act but punishing only the crime of forging a document, which is the means of such act, cannot be said to be an appropriate exercise of penal authority consistent with the illegality of the outcome and the act of punishing the crime of forging a document. Furthermore, the difference between the statutory penalty and the crime of forging a private document is larger, and there is no provision of a special law that punishs the amount of fraud, but there is no such provision in the crime of forging a private document, thereby punishing the actor, etc. as the crime of forging a private document even if he acquires a huge pecuniary benefit through the crime of signature swindling.

F. (1) The issue of whether a dispositive act can be recognized only when the content of the dispositive document is specified to some extent at the time of signing or sealing the signature or seal by the defrauded is of the nature to be determined by comprehensively taking into account each case’s overall circumstances. The form of a criminal act is so diverse that it is difficult to present a uniform standard by which all the special circumstances of an individual case can be included as much as possible. In light of the role and function of a dispositive act in fraud, the core judgment criteria are whether the document signed or sealed by the defrauded has the appearance as a disposal document, which may directly and objectively bring about the effect of acquiring property or pecuniary gain, and whether the act of signing or sealing on the pertinent disposal document may be deemed as having made an intent of disposing of property by the defrauded, etc. outside and objectively due to the act of signing or sealing the pertinent disposal document. In other words, it can be said that the signing or sealing by the defrauded has contributed to such occurrence. Ultimately, it is an essential matter of the constituent elements.

(2) Fraud is a dispositive act by the defrauded, who is not a actor, and can be deemed to have caused such an act to be a dispositive act by the defrauded. Therefore, inasmuch as it is reasonable to treat the same as the signature and seal on the part of the defrauded, not in cases where the actor or a third party acts on behalf of the defrauded according to his/her instructions, such as the satisfaction of the defrauded, it shall not be deemed that the defrauded performed a dispositive act on behalf of the defrauded, even though the actor deceivings the contents to be entered in the disposal document, thereby allowing him/her to act on behalf of the defrauded, thereby incurring property loss on the part of the defrauded, as it does not differ from the dispositive matter.

As above, I express my concurrence with the Majority Opinion.

7. Concurrence with the Majority by Justice Kim Shin

A. Even though the defrauded was unaware of the meaning or content of a dispositive act, he/she is controlled by the defective intent of the defrauded, which has been erroneously affected by his/her act or omission, which directly causes property damage, and thereby, if the Defendant received property or acquired property benefits therefrom, fraud is established and the awareness of the consequences of the commission or omission by the defrauded is not necessary. The reasons are as follows.

(1) Whether fraud is constituted shall be determined on the basis of whether it constitutes a constituent element under the Criminal Act. Whether a dispositive act recognizing the consequences of the disposition by the defrauded is necessary in the establishment of fraud shall be determined on the basis of the literal interpretation thereof.

Article 347 of the Criminal Act provides that a person who, by deceiving a person, has a third party receive property or have a third party acquire pecuniary advantage by means of the same manner as a person who has received property or acquired pecuniary advantage, shall be punished as fraud (Article 347 of the Criminal Act). In the language and text, only the elements of an act by a defendant to receive property or acquire pecuniary advantage are prescribed as a constituent element, and it is apparent that the defrauded does not have to accept

However, in order to establish fraud, it entails an act that causes property or property damage on the part of the defrauded, as a premise for the latter to receive property or acquire pecuniary benefits. It is natural that if a certain act is intended to be evaluated as an act of the defrauded, the perception of the defrauded on the natural act itself is necessary, and it cannot be said that the act of the defrauded is an act of the defrauded without awareness. However, if it is deemed that the act or omission by the defrauded directly causes property damage and is controlled by the intent of the defrauded, it does not constitute an act of the defrauded.

The essence of fraud is to acquire property or pecuniary gain by deception, and the dispositive act by the defrauded, i.e., the victim, in acquiring property or pecuniary gain, is involved in the acquisition of property or pecuniary gain. Even though a dispositive act by the defrauded is merely a premise for the acquisition of the defendant’s property or pecuniary gain, such dispositive act does not necessarily have any legal basis or logical justification to deem it necessary to recognize the consequences of the disposition by the defrauded. This is not an emphasis on the necessity of punishment from a criminal policy perspective, but a natural interpretation of the provisions of the Criminal Act.

(2) In order to uniformly interpret various types of acts in which the Defendant acquires property or pecuniary advantage in fraud, it cannot be deemed that fraud is established only when the defrauded performs a dispositive act with awareness of the consequences of the disposition.

The Criminal Act’s protection by fraud is not the victim’s freedom of decision-making, but the victim’s property as a whole. Therefore, if a dispositive act by the defrauded, which is a premise for the acquisition of the Defendant’s property or pecuniary advantage in fraud, causes an objective direct damage to property, it is not a juristic act under the Civil Act, but a purely meaningful factual act is also included, and it does not necessarily mean that it can be invalidated, invalidated, or revoked.

However, in the event that a dispositive act has a declaration of intent or a appearance of a juristic act, the defrauded may have the intent to recognize the consequences of the dispositive act. However, even in a case where a dispositive act is a pure factual act, recognizing such intent is nothing more than the meaning that recognizing the perception of the consequences of the dispositive act itself as a perception of the consequences of the dispositive act. In addition, the intent of recognizing the dispositive act of the defrauded, which is the premise of acquiring the Defendant’s property or pecuniary advantage, requires the intent of recognizing the consequences of the dispositive act as a legal act under the Civil Act or as a result that may arise, and the attempt of interpreting such meaning as a constituent element of fraud brings about the waiver of the uniform interpretation on the case where the Defendant acquires property or pecuniary advantage

(3) The subject of punishment in fraud is an act of a criminal defendant, and the subject of evaluation in determining the gender of fraud is also an act of the criminal defendant, not an act of the criminal defendant. Therefore, the establishment of fraud is an issue of evaluation and determination in terms of the criminal defendant’s act, and it is not an issue of evaluation in terms

The intent of the victim's dispositive intent means the perception of the consequences of a disposition, and the attitude of understanding it as a constituent element is to evaluate the validity of an expression of intent under the Civil Act in a case where there is any disagreement between the subjective intent of the defrauded and the objective act of expression. However, the interpretation of the expression of intent under the Civil Act is a matter of determining the legal effect of granting the expression of intent in consideration of whether or not there is no expression of intent by the defrauded, or whether there is any defect corresponding to the invalidation or revocation in such expression of intent. On the other hand, the issue of whether fraud is established is a matter of determining whether the act of the defendant, who received property or acquired pecuniary gains, by causing such situation, constitutes a crime of fraud under the Criminal Act. As long as fraud is intended to punish the defendant's act, the dispositive act by the defrauded, which is the premise of acquiring the defendant's property or pecuniary gains, is merely a means of evaluating whether the defendant's act constitutes the constituent element of the crime of fraud. If there is no reason or need to deem it as a complete expression like a juristic act under the Civil Act.

In an objective view, it is recognized that the Defendant directly received property or acquired pecuniary advantage due to the dispositive act by the defrauded, and if it has a causal relationship with the Defendant’s deception, fraud is established. Whether there exists a legal effect due to the intent of the defrauded in a civil case is a matter to be discussed separately in a civil case. Even if the Defendant acquired pecuniary advantage according to the content of the disposal document by the act by the defrauded, it is difficult to find the reason to exclude it from fraud, even if it has a legal effect different from

B. The core content of the Dissenting Opinion is that the dispositive act by the defrauded, which is a self-damage crime, should be governed by the intent formed on the basis of awareness that the dispositive act by the defrauded is related to property rights, and that the dispositive intent without awareness of the result of the dispositive act cannot be deemed as a dispositive intent corresponding to the dispositive act. As a constituent element, the mistake by the defrauded is limited to the motive, intent, and purpose of the dispositive act, and the mistake on the dispositive act itself, which does not have awareness of the result of the dispositive act, cannot be included in the mistake as referred

(1) Fraud is a self-harm crime and the act of the defrauded must be involved in its nature. However, such circumstance alone does not necessarily lead to the conclusion that the perception of the consequences of the disposition by the defrauded is necessary for the establishment of fraud.

The meaning of fraud is a crime of self-damage by the defrauded’s involvement in the act of the defrauded, thereby acquiring property or pecuniary advantage. Unlike the crime of larceny, the purpose of the act of the defrauded by mistake is to have caused the reduction of property of the defrauded directly and the increase in property of the accused or a third party without a criminal intermediary act. However, just because the act of the defrauded is involved, there is no reason to deem that the perception of the consequences of the disposition by the defrauded is separate from the crime of taking-off and the crime of fraud. The victim’s subjective perception is merely an important factor to consider whether the transfer of property or pecuniary advantage is directly attributable to the act controlled by the victim’s intent or whether it is a direct consequence from the Defendant’s act.

According to the view that there is a necessity for awareness of the consequences of the disposition by the defrauded in fraud, it does not necessarily mean that a dispositive intent is recognized only when the defrauded fully separates his/her own property from his/her own property and accurately recognizes whether the property subject to a dispositive act belongs to the accused or a third party. If it is interpreted to require a strict dispositive intent in fraud, it reaches the conclusion that fraud is not established at any time since there is no awareness of the consequences of the disposition in cases where property is given to a person who lends property without the intent to return property. Ultimately, there may be cases where it is difficult for the defrauded to clearly specify what “a perception of the consequences of the disposition” as a dispositive intent. Although the Supreme Court has precedents that indicate the meaning of a dispositive act in fraud and that of the defrauded’s subjective perception of the consequences of the disposition, it is understood that the perception of the consequences of the disposition by the defrauded is expressed as the perception of the consequences of the disposition, which is necessary for the establishment of fraud. The concept of the consequences of the disposition by the defrauded is not derived from the intrinsic nature of the crime of self damage, but from fraud.

(2) In this regard, the Dissenting Opinion is difficult to accept that the perception of the result of the disposition ought to be the elements of fraud, if it is deemed necessary to take such action.

The dissenting opinion is that the perception of the consequences of the disposition by the defrauded is necessary on the premise that the dispositive act by the defrauded has an expression of intent or the appearance of a juristic act in fraud in which the defendant acquires property benefits. However, it is unclear whether such interpretation can be applied in fraud in which property is received.

In general, in a case where a dispositive act by the defrauded is an act of delivering property by the defrauded, the subjective intent of the defrauded is understood to be sufficient for the awareness of the transfer of possession, and it is difficult to find a view that the defrauded ought to accurately recognize the consequences of the act of delivering property. However, the Criminal Act explicitly states the act of the Defendant by deceiving the victim to receive property as the principal type of fraud, and it is apparent that the act of acquiring property gains by deceiving the victim is a type of fraud equal to that of fraud. It is clear that the act of receiving property and the act of acquiring pecuniary gains by deceiving the victim is a type of fraud. The subjective element for recognizing a dispositive act by the defrauded in the crime of fraud is equal to that of fraud. The subjective element for recognizing a dispositive act by the defrauded in the crime of fraud is sufficient to have the awareness of the act of transferring property itself. However, there is no reason to view that the perception of the consequences of disposition

The Dissent argues that, in fraud, if the dispositive intent on the part of the defrauded is deemed necessary, the Majority Opinion’s independent interpretation of the dispositive intent would result in inconsistency. However, beyond the meaning of opposing the intent of the defrauded who does not have awareness of the consequences of the dispositive act itself, it is doubtful whether there is a ground for justifying the conclusion that the perception of the consequences of the dispositive act is a constituent element. It is necessary to distinguish only the perception of the consequences of the dispositive act by the defrauded as a dispositive intent and the perception of the act itself as a standard for distinguishing the consequences of the dispositive act by the defrauded from the dispositive act. Therefore, if the purport is that such perception is unnecessary, the Majority Opinion can be understood as only that such dispositive intent is not necessary in a limited sense.

(3) As a result, it cannot be deemed that the mistake on the part of the defrauded as an constituent element is limited to the motive, intent, and purpose of the dispositive act.

Even if the elements of fraud under the Criminal Act have been repeatedly examined, there is no room to interpret that the act of deceiving the defrauded should be limited to the motive, intent, and purpose of dispositive act. The Criminal Act only provides that the act of deceiving the defrauded as the object of evaluating the act of the defendant, by deceiving the person, or acquiring property or pecuniary advantage, shall be punished as fraud, and the act of disposal by the victim is only involved in the acquisition of the defendant's property or pecuniary advantage. Whether the deception by the defendant, which constitutes the elements of fraud, concerns the motive, intent, and purpose of dispositive act, or is related to the dispositive act itself, or can be assessed as a deception by deceiving the victim. If the defendant received property or acquired pecuniary advantage by having the victim received property or acquired pecuniary advantage on the basis of the defective intent, there is no reason to exclude it from fraud.

Fraud is established only when the defendant acquires property or property benefits by the other party’s defective declaration of intent. In order for the defendant to have the other party acquire defective intent through deception, circumstances concerning the motive, intent, and purpose of the act of disposal are also taken by deception. In other words, in a typical case where fraud is established, there are many cases where the defendant deceptions the other party’s motive, intent, and purpose of the act of disposal, but it is difficult to adopt the crime of fraud only in such a case on the basis of such circumstances.

C. The Criminal Act does not stipulate a dispositive act in the manner that the defrauded knows the consequences of a dispositive act as a constituent element of fraud, and the dispositive act by the defrauded may be a factual act and may be a juristic act. Therefore, insofar as the act directly causing property damage is controlled by the intent of the defrauded, i.e., an act or omission by the defrauded, the subjective element necessary to recognize the dispositive act by the defrauded is sufficient to be the awareness of the act itself, and if such awareness is not recognized, it cannot be deemed a dispositive act by the defrauded. It may be deemed that it is a dispositive intent separately assessed that does not go beyond the awareness of the act accompanying the dispositive act itself, and it may be said that it is nothing more than a dispositive act itself, and the dispositive intent does not need to be deemed to be a dispositive intent. This is nothing more than a difference in the classification or name. However, it is not necessary to deem it necessary to recognize the consequences of the dispositive act in fraud, which is natural in terms of the interpretation of the Criminal Act of the Defendant in terms

As above, I express my concurrence with the Majority Opinion.

8. Opinion concurring with the Dissenting Opinion by Justice Kim Yong-deok, Justice Kim So-young, and Justice Park Sang-ok

A. (1) The principle of responsibility is the major principle of criminal law, and the principle of private autonomy or the principle of self-responsibility is the major principle of civil law. The ideology leading to such a large principle is the principle of liberalism that is bound and responsible for an act and its result by free will of a person. However, there are cases where one party cannot check its original intent due to a difference arising from the capacity of a person or the ability of an act, etc., which exists between the people in the real world, due to the difference in the capacity of a person and the ability of an act, an appropriate consideration is given through the legal system supported by democracy. This is the principle of modern sense of responsibility and the principle of private autonomy or the principle of self-responsibility. Ultimately, in legal relations formed by the will of a person, an adequate share and interpretation should be granted based on such intent and legal system.

(2) According to such principle of accountability, the Criminal Act does not provide for an act performed through ignorance of the facts which comprise the constituent elements of a crime, but provides for the exception of cases where there are special provisions in law (Article 13). An act performed through ignorance of the facts which constitute a special serious crime does not constitute a serious crime (Article 15(1)). Furthermore, if it was impossible to anticipate the occurrence of a result in a crime on which punishment is to be imposed as a result, it shall not be punishable for a serious crime (Article 15(2)).

(3) In the property crime, infringement of legal interests can be classified into one type of infringement of legal interests through the victim’s act, such as theft, such as the type of unilaterally infringing the legal interests of the victim by the perpetrator. More specifically, such infringement of legal interests can be said to be a self-harm crime arising from the victim’s decision-making, which is the victim’s choice and use. The essence of fraud lies in the denial of the victim’s property act selected by the intention determined based on the wrong perception caused by the mistake caused by the perpetrator’s deception, leading up to the victim’s property damage, and the Criminal Act is more severe than the theft. Ultimately, criminal acts are punished for fraud by focusing on the infringement of the victim’s freedom of decision-making through deception that takes place beyond the occurrence of property damage. Ultimately, the victim’s property act committed in a state of infringement of the victim’s freedom of decision-making by deception, recognition of each property profit, and the occurrence of the result as a result of such act would serve as the fundamental sphere of the State’s penal authority.

B. (1) In the meantime, the Supreme Court: (a) fraud has been established by deceiving another person to make a mistake; and (b) obtaining property and property gains by inducing such dispositive act; (c) the dispositive act is a property dispositive act that requires subjective intent to realize dispositive intent, namely, awareness of the consequences of the dispositive act and its consequences; and (d) objectively, it has been interpreted that there should be an act controlled by such intent; and (e) further, the Supreme Court held that omission, which is not a dispositive act by free will, is also a dispositive act on the premise that it is an act by free will, by interpreting that it is an act that directly

(2) In addition, an omission that constitutes an act of disposal is not a simple omission that does not act any other means, but a certain exercise of right that can or must be done as a postponement or renunciation of right, and refers to a so-called secondary omission that can be evaluated as an act of property disposal. Therefore, recognition of the result of such omission and the intent or intent of a disposition that realizes the result by omission is necessary as well as the intention of a disposition that realizes the result by omission. Rather, recognition and intent of such omission as an act of disposal is an essential element that separates omission from other simple omissions.

(3) Ultimately, the Supreme Court’s interpretation of a disposal act and a disposal intent as an intentional element is based on the above theory of conduct and the intrinsic nature of fraud, and thus, should not be modified.

C. With respect to the signature swindling case at issue in this case, while the Majority Opinion deems it necessary for the defrauded to recognize fraud, the dispositive act and dispositive intent is recognized even without the awareness of the consequences of the act, in the absence of the awareness of the consequences of the act, even though the defrauded, in order to recognize fraud, is in need of the dispositive act and dispositive intent, and further, it appears that the dispositive intent is recognized as long as the defrauded recognized the dispositive intent as the content of the document on the signature and seal without recognizing the specific content and legal effect of the document, and recognized the act of dispositive intent as to the act of dispositive act in relation to the act of dispositive intent on the signature and seal. In this context, although the Majority does not clearly state what respect the signature and seal intent is a dispositive intent separate from that of other acts, it appears to the purport that the perception of the signature and seal is deemed to have been established

However, if the meaning of dispositive intent in a signature swindling case is changed as stated in the Majority Opinion, it is difficult to accept as against the essence of fraud, which requires the foregoing theory of conduct and dispositive act, as it is contrary to the intrinsic nature of fraud, where there is no internal intent corresponding to the act of preparing or indicating a document, and where there is no awareness that there is no legal effect, or where it is not possible to recognize an act of indicating a document, recognizing the intent of the defrauded and the dispositive intent on the document, and ultimately, deeming

On the other hand, we will examine the various legal problems that the new theory of disposal disposition presented by the majority opinion is in detail.

(1) In discussing whether a party’s genuine intent is an act, it cannot be said that the party’s genuine intent is detached, and, in general, the genuine intent and the external act are in accord with the other party’s genuine intent, but how to interpret it in conflict with the other party’s genuine intent, and what legal effect should be given is the legal subject. In interpreting a declaration of intent under civil law, it is reasonable to interpret it with the intent to be inferred by an act externally expressed rather than the party’s internal intent. However, in the interpretation theory on cases where the party’s genuine intent is unknown, it is not an act expressed externally, but an act expressed externally if the party’s genuine intent is known. In other words, it cannot be said that the party’s genuine intent is determined and the content of the act is deemed as an act, and the intention

Nevertheless, the Majority Opinion explains that, even though the defrauded did not accurately understand the meaning or content of a dispositive act, there is a dispositive intent accompanying the dispositive act, and on this basis, in the case of a signature swindling case, insofar as the defrauded signed and sealed the act, it shall be deemed that there was a dispositive act by document as long as the dispositive intent was recognized. However, this is the disregarding the relationship between the act and the intent of the act, the relationship between the dispositive act and the dispositive act, and the subjective element required under the premise for the recognition of a dispositive act. In addition, even though the defrauded was aware that the document was simply prepared, it would be contrary to the essence of the theory of dispositive act as well as to recognize a dispositive act by dispositive intent with regard to the document prepared, and thus, it would be difficult for the defrauded

(2) Furthermore, among the cases of signature swindling, there are cases where there is no awareness or opinion that the defrauded is performing a legal act in a civil manner, namely, the awareness that the defrauded is performing an act concerning the disposal of rights.

As a result of a mistake in the course of deception, the defrauded signed a document without the intention of preparing a document having a certain legal meaning or signed according to the awareness that the document is completely unrelated to the legal act, for example, a document written confirmation or written application, etc., and where the content on the disposal of rights is written in the document written, the defrauded does not have an intention to create a specific legal effect such as the written one through signature on the document, nor does he/she have an awareness that a legal effect takes place by his/her own act. It is not different from an act done without any awareness when there is no intention on the legal act itself, nor does it be deemed that he/she conducted a dispositive act with the said act with the said act.

As delineated below, there is no difference between the defrauded and the deceptionr in the event that there is an internal intent and the indication of an intent in respect of a civil declaration of intent. However, even though there is no intention in itself that both the defrauded and the deceptionr perform any legal act, the discussions on the mistake of intent are presented. From the point of view of the defrauded, solely on the ground that there is a disagreement between the intent and the content of the document in the context of the defrauded, the dispositive act by the defrauded was conducted between the defrauded and the deceptionr pursuant to the content of the document, and furthermore, it cannot be deemed that there was an intent by the defrauded on the part of the defrauded. Furthermore, under the Civil Act, if the other party to the declaration of intent could have known that he/she is not a true one, such declaration of intent is null and void (Article 107(1) of the Civil Act), and a false declaration of intent made in collusion with the other party is also null and void (Article 108(1) of the Civil Act). Rather, in this case, it is more serious that there is no disagreement between the perception and the system of intent to revoke.

In addition, the Supreme Court has long taken over the goods as if they were to purchase them, and considered them as larceny in cases where they escaped with other doping systems and carrying the goods. For example, the same applies to cases where they escape from the shop under the pretext of Otoba test (see, e.g., Supreme Court Decisions 94Do1487, Aug. 12, 1994; 2009Do3139, Jun. 11, 2009). This appears to the purport that, notwithstanding the appearance of delivery and use of the pertinent goods, there is no actual act of disposing of the victim’s possession control, and such legal effect is not intended. However, there is no significant difference between the said act of deception and the victim’s legal effect without having intended the legal effect, and if the Supreme Court recognizes the intent of disposal and disposal by taking advantage of the external form or the document prepared by the signature and seal, it is also established as a result of the existing act of disposal and disposal corresponding to the previous act of fraud.

Ultimately, even though there is no awareness or intent as to the disposition that generates legal effect, deeming that there exists an act of disposal and a disposition incidental thereto as an expression of intent with only the result of document signature goes beyond the bounds of the interpretation of the act of disposal, since it is deemed that there exists an nonexistent perception, intention, and other disposal.

(3) In addition, the Majority Opinion’s discussion on whether a signature act constitutes a dispositive act is conducted on the basis of the interpretation of a civil declaration of intent, namely, external expression of intent by a document, is being considered as indicated in the disposition document. However, it is doubtful whether it is reasonable to explain the criminal dispositive act, which serves as the basis for determining the establishment of fraud, with the expression of intent in the civil law or the interpretation of a legal act. Moreover, the logic of the Majority Opinion, which considers that an act of signing and sealing a document itself is evaluated as an act of property disposal as an expression of intent in accordance with the content of the document, and that an act of signing and sealing a document is deemed as an act of property disposal as an expression

(A) Civil declaration of intent is an external expression of intent of effect, and there is no restriction on the method thereof. Documents, such as written contracts, are the means prepared to clarify such declaration of intent or legal act. The preparation itself is a factual act, and the contents of declaration of intent formed between the parties through the preparation of the document address legal acts. In the event there is a difference in the interpretation of a contract between the parties as to the interpretation of a contract, where interpretation of the parties’ intent expressed in a disposal document is at issue, it is also the same purport to explain that a reasonable interpretation should be made in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc.

Therefore, even though the preparation of a document may be a valuable evidence as to the fact that a declaration of intent or a juristic act was made, it cannot be said that the preparation of a document alone is deemed as a legal act without any equivalent declaration of intent. For instance, even if the father, who is the document maker, did not decide whether to give a gift to the children and only prepared a donation contract, it cannot be deemed as a legal act, and even if the possession of the document was transferred to the son in the process of the director, it cannot be said that there was a legal act of donation between the father and the son, and even if the method was adopted in the process of possession transfer of the document, the absence of the legal act does not change. In other words, even if the document’s actual declaration of intent was made not in itself, but in the process of the preparation of the document, and the preparation of the document without containing such intent is merely a fact that it was a simple preparation of

The Supreme Court considers the forgery of a document as a forgery in case where the document is obtained by deception. Since the forgery means the document written against the will of the person who prepared the document. As such, deeming the document written by defraudation as a forgery refers to the document written against the will of the person who prepared the document even if the person who signed the document, and the contents contained in the document have been written against the will of the person who prepared the document. Ultimately, the content contained in the document is not the intention of the person who prepared the document, but is not the content of the document, nor the expression of intent or legal act in accordance with the content thereof, nor the document

(B) The indication for the establishment of a declaration of intention is recognized if there is an external act that can be inferred by the intention of the reporter.

As in the instant case, in order to constitute fraud in which the act of the defrauded, who borrowed money, created a collateral to a third party by means of a document establishing a collateral in the name of the defrauded, thereby acquiring a pecuniary gain from the defrauded as the victim, it is natural that the act of the defrauded, who borrowed money, is in need of property dispositive act or expression of intent by the defrauded, which is the creation of a collateral security right against a third party

However, in cases where the other party of a declaration of intent or property dispositive act is a third party who is not a deceptionr, it cannot be deemed that the defrauded expressed his/her intent to dispose of property to a third party or dispositive act to a third party with only the document preparation between the defrauded and the defrauded, and rather, the dispositive act against a third party is constituted by deception rather than the defrauded. Furthermore, if the deceptionr appears to have committed an act establishing a collateral to a third party by using the document in question to have the intent of creating a collateral, it is necessary to have the right of the defrauded as to the declaration of intent or contract by the defrauded by the deceptionr, and if it is not possible, it is merely an unauthorized representation by the defrauded or an unauthorized act by the defrauded. Therefore, it cannot be deemed that the act of creating a collateral security by the defrauded is a dispositive act by the defrauded by the dispositive intent by the defrauded. Nevertheless, in such cases, it is difficult to accept the Majority Opinion as above.

In addition, in accordance with the Majority Opinion, if the defrauded recognizes a dispositive act by the defrauded, the dispositive act is bound to be the document itself. This is because, even in cases where a deceptionr fails to deliver a document to a third party after signing, it is not clear whether fraud is established by recognizing the dispositive act by the defrauded, whether fraud is established by recognizing the dispositive act by the defrauded, only in cases where the document is delivered to a third party, or whether fraud is established by recognizing the dispositive act by recognizing the dispositive act by the defrauded, or in cases where the document is delivered only in cases where a document is delivered to a third party, or whether fraud is established by signing a contract with a third party and signing a mortgage contract with a third party and completing a mortgage creation or completing a mortgage establishment registration. This problem is because

In the end, the Majority Opinion’s conclusion that the expression of intent corresponding to the content of the document was made externally by means of the preparation of the document seems to have followed the direction of argument by excluding the process of establishing the remaining expression of intent, focusing on the need to punish the case of signature swindling, and failing to properly examine the acts after the preparation of the document.

(C) Furthermore, in civil cases, the Supreme Court considers that the expression of intent by fraud is a case where the expression of intent by deception was made by another person due to deception, and thus, there is no disagreement between the intention and the expression of intent, that is, it is merely a case where there is mistake in the motive for the expression of intent, and that it is separate from the expression of intent by mistake in its own meaning. In this regard, as in the instant case, it is deemed that the signature and seal on the disposal document was made in the form of mistake, but the signature and seal of the document that generates legal effect different from the intention in its own opinion is not consistent with the intention in its internal deliberation and the intention in its indication, even if the mistake was caused by deception by deception by a third party, the legal principle on the expression of intent by mistake should not be applied to the case where the mistake was made by deception (see Supreme Court Decision 2004Da43824, May 27, 2005, etc.).

Such Supreme Court precedents clearly indicate that there is no intent to engage in a legal act corresponding to the content of the document by distinguishing the content of the document from the document by deception and the expression of intent by deception, and can be said to be responding to the criminal precedents that deny the intent of disposition regarding the deception of signature. Furthermore, the above Supreme Court precedents recognized the defraudation of signature as a civil mistake, and the civil mistake is not inconsistent with the expression of intent as there is no intention or effect in the internal deliberation. Therefore, even if a civil mistake was recognized, it is not a change in the premise that there is no intention corresponding to the externally expressed result.

As such, recognizing the establishment of fraud by deeming that the externally expressed content was carried out by the intent of the defrauded, even though the defrauded did not have any internal intent corresponding to the external expression of intent by the defrauded, there is an unreasonable conclusion inconsistent with the existing interpretation of the Supreme Court concerning the expression of intent.

D. Meanwhile, the Majority Opinion, unlike the actor’s criminal intent, does not relate to the principle of liability and is merely a subjective element of a dispositive act, and thus, the subject matter of the actor’s criminal intent is all the constituent elements of fraud, but the subject matter of the victim’s criminal intent is limited to the dispositive act itself among the constituent elements of fraud. Therefore, it is examined whether the perpetrator’s criminal intent and the dispositive act of the victim are separate as stated in the Majority Opinion.

(1) According to the principle of liability, the main text of Article 13 of the Criminal Act provides that an act which fails to recognize the facts which comprise the constituent elements of a crime shall not be punishable. According to such principle of liability, Article 347(1) of the Criminal Act provides that a crime of fraud is established in cases where a person is deprived of another, thereby taking property or acquiring pecuniary benefits. Therefore, the actor of a crime of fraud must be aware that he/she obtains property or pecuniary benefits in addition to deception.

(2) In the case of signature swindling, the offender’s criminal intent is examined. The Defendant, Nonindicted Party 1, etc., by deceiving the real estate owner as necessary documents for land transaction permission, etc., and ordering the real estate owner to sign and seal the written mortgage contract, etc., and obtaining the owner’s certificate of personal seal, and using each of the land, establishing the Defendant as the debtor with regard to each of the land and making the lessee, etc. and borrowing money. The point at which the Defendant et al. perceived that the Defendant et al. obtained property through such a series of acts can be said to have obtained the money of loan.

The mortgage contract, etc., which has been signed and sealed by the real estate owner at the previous stage of the transfer, is merely a means to obtain a loan from the defendant, etc. and is not a property. Thus, in relation to the act of obtaining a signature and seal in a mortgage contract, etc., there is no awareness that the defendant, etc. obtained a property which is the constituent element of the crime in relation to the act of obtaining a signature and seal in the mortgage contract, etc., and there is no difference from the perception that the seal was delivered to obtain a seal to obtain a document of registration of transfer or to prepare a document of registration of transfer,

(3) However, the Defendant et al. used two deceptive acts, not a single deceptive act, in these series of processes. The first deceptive act is a deceptive act against the signature and sealer, and the second deceptive act is a deceptive act against the lender of the borrowed money. The Majority Opinion, separate from the issue of proof, appears to be in the position of recognizing the acquisition of the borrowed money by the latter as a fraudulent act, should be limited to the former.

(A) We would like to compare the former deception and the theft of books. It would be difficult to say that if the principal is aware of the fact that the gold boom in the display stand in precious metal booms the floor and has diminished it, it would be difficult for the principal to constitute fraud. Although it may be viewed from the perspective of the victim’s disposal act, even at the point of view of the perpetrator’s criminal intent, the perpetrator is merely the criminal intent of theft and has no criminal intent of fraud.

(B) However, if an actor pretended as if he were in gold transactions, and the net level of the gold subject to sale is merely 30%, and he believed it to be 30% of the market price by manipulating the machine measuring the net level, and then purchased the gold, then it would be deemed as fraud. In addition, it may be viewed as a disposal act of the victim, but it may be viewed as a fraud from the perspective of the actor’s criminal intent.

(C) The former deception is very similar to the document theft as the Dissenting Opinion discussed. In the case of a funeral service, as if the Supreme Court completed a document by means of a seal which did not regard it as fraud, as if it had been the document forgery, if the signature and seal was affixed to an unclear document that had been kept to a certain extent, then the document forgery is merely a document forgery. From the perspective of the actor’s criminal intent, the actor is merely a criminal intent of document forgery, rather than by taking the signature and seal of the nominal owner, rather than by taking the signature and seal of the nominal owner into account the actor’s criminal intent. Furthermore, there is only a criminal intent to recognize it as a means of subsequent fraud.

(D) In the past, the Supreme Court held that if the title holder of the document, who is the title holder of the document, has affixed a seal to the registration document for the transfer of a part of the whole land because he/she purchased only a part of the whole land area, he/she would have obtained the registration for the transfer of a part of the land area, and thereby has obtained the seal to the registration document for the transfer of the whole land, it constitutes a crime of forging private documents, since he/she would have prepared a document different from the intent of the title holder to prepare the document by using a false statement about the contents of the document (see Supreme Court Decision 70Do1759 delivered on September 29, 1970). From the same point of view, it constitutes a crime of forging private documents, which belongs to the true use, and even after having obtained the seal imprint from the victim and completed the registration for transfer of ownership in the name of the title holder, it cannot be said that there was an act of disposal of the victim, and it is reasonable to hold the defendant not guilty of the facts charged of fraud (see Supreme Court Decision 89Do35353, Feb. 27, 19

(4) We examine the case in which the acquisition of the borrowed money was not reached in the case of signature swindling. In the case of deception, if the person who wants to obtain the signature and seal of the nominal owner, but the nominal owner did not do so, it would be an attempted fraud according to the majority theory. However, as seen earlier, the actor intended to obtain the mortgage contract by means of the nominal owner, rather than property or property gains, is merely a signature and seal of the nominal owner, and the actor failed to obtain it. The actor used it as a means of fraud, thereby obtaining money from the nominal owner, and can be deemed as a criminal intent recognizing the fact that the perception of this part is the constituent element of fraud. Accordingly, the actor is merely an attempted attempt after commencement of the execution of the document forgery, and it is consistent with the attitude of the Supreme Court related to document forgery.

If, even though the establishment of a mortgage was completed after the signature and seal was affixed, but the borrower did not grant a loan by suspending the lending of money after confirming the nominal owner, it is doubtful whether the act of collateral creation can be said to have been completed as a result of acquisition of property profit by completing the act of collateral creation. In accordance with the Dissenting Opinion, there is no doubt as to whether the act of document forgery can be said to have been completed as a result of fraud. Furthermore, even if the actor and the lessee were to be co-offenders, and if the actor and the lessee were to have completed the establishment of a mortgage registration before signing and sealing and borrowed money, they did not actually lend money, and if a false borrower obtained the money for repayment of loan from a signatory on a loan basis, it is doubtful whether the act of signing and sealing can be deemed to have been an act of disposal as shown in the Majority Opinion. In addition, if the Dissenting Opinion is followed by document forgery and fraud, there is no doubt about recognizing the establishment of fraud and fraud.

(5) We examine the accomplice relationship in the signature swindling case. It is assumed that only recognized the result of obtaining a signature and seal, and did not recognize the acquisition of the loan, and that the accomplice, who was aware of the result of the acquisition of the loan, did not reach the acquisition of the loan by means of arrest, etc. immediately after obtaining the signature and seal on the mortgage contract. According to the Dissenting Opinion, the accomplice in document document may be deemed to be established. However, according to the Majority Opinion, it is unclear whether he/she becomes the accomplice in document fraud, whether he/she becomes the accomplice in document fraud, whether one of the accomplices becomes the accomplice in document fraud, and whether the other one of the accomplices ought to be deemed to be a document

(6) We examine the offender’s criminal intent in various aspects, and there is no doubt as to whether the offender’s criminal intent as referred to in the Majority Opinion conforms to the principle of accountability. Examining the offender’s criminal intent in accordance with the principle of accountability, the offender’s criminal intent is divided into the offender’s intent to obtain the signature and seal and the offender’s intent to borrow the borrowed money, and the former is divided into the offender’s intent to commit fraud in document document, and the latter is divided into fraud. Nevertheless, both the former and the latter recognize both the former and the latter as the offender’s criminal intent, and in particular, in the former, the series of criminal plans of the offender’s criminal intent leading to the final outcome of the acquisition of the money borrowed, as the object of the offender’s criminal intent, is different from the principle of accountability. Ultimately, as long as seeing the offender’s criminal intent in accordance with the principle of accountability, it is necessary to recognize the result of the act of disposal in front of the defrauded’s dispositive act.

E. In conclusion, as in the absence of intent, an act in favor of the defrauded does not constitute an act of dispositive act independently existing from dispositive intent, and cannot be deemed to have committed a dispositive act with the intent to dispose of the property or a dispositive act with the intent to dispose of the property on the part of the defrauded who is unaware of whether he/she disposed of the property. In the absence of awareness that the act would have been transferred between the actor and the dispositive act, the act is not perceived as an element establishing fraud, and there is no awareness about the dispositive act in favor of the dispositive act, and thus, it cannot be deemed fraud. However, the Majority Opinion is irrelevant to the internal awareness and dispositive intent of the defrauded as to the dispositive act and dispositive intent as to the dispositive act in respect of a document, on the premise that it is necessary by the defrauded regarding the dispositive act and dispositive intent as to the dispositive intent as to the specific outcome, and rather, recognizing a dispositive act is contrary to the legal principles and the intrinsic nature of fraud based on the theory of acts that have been consistently established. In addition, the Majority Opinion does not agree with the principle of accountability.

As above, I express my concurrence with the Dissenting Opinion.

9. Opinion concurring with the Dissenting Opinion by Justice Jo Hee-de

A. The so-called “signing fraud” at issue in the instant case is a case where, due to deception, the defrauded signs or affixes his/her signature or seal on a document different from the intent of the internal deliberation, the perpetrator acquires pecuniary profits from the registration of the establishment of a neighboring mortgage

B. In order to establish fraud, there should exist a causal relationship between the actor’s deception, mistake on the part of the defrauded, dispositive act in accordance with the mistake on the part of the defrauded, and acquisition of property or pecuniary advantage by the actor, etc. In particular, a dispositive act in fraud plays the role of distinguishing the larceny in which the actor acquires property by taking advantage of the act of the defrauded, not by the act of the defrauded, but by taking advantage of the act of the victim. As to this dispositive act, the Supreme Court has held that the defrauded has the awareness of the consequences of the dispositive act, namely, the perception of the consequences of the disposition

C. However, even though the defrauded did not have knowledge of the meaning or content of a dispositive act, if the commission or omission by the defrauded is evaluated as a property dispositive act directly incurring property loss, and if the defrauded knew of such act or omission, then the dispositive intent corresponding to the dispositive act is recognized, and the defrauded does not have to recognize his/her dispositive intent to recognize the consequences of his/her commission or omission. Therefore, in the case of signature swindling as in this case, ① inasmuch as the defrauded signed or sealed a dispositive document that generates any effect different from his/her intent as a result of the actor’s deception, thereby causing property loss in accordance with the content of the dispositive document, the act by the defrauded who signed or sealed the dispositive document constitutes a dispositive act in fraud, and ② even though the defrauded did not have knowledge of the specific content and legal effect of the dispositive document, the dispositive intent by the defrauded should also be recognized, insofar as he/she was aware of the act of signing or sealing the dispositive document by signing or sealing it on a document.

In addition to the opinion expressed in the Dissenting Opinion, the Majority Opinion is examined as follows.

(1) The Majority Opinion appears to the effect that a dispositive act and dispositive intent by the defrauded is recognized even if the defrauded did not recognize the specific content and legal effect of the document, inasmuch as the defrauded signed or sealed a certain document with the awareness that he/she voluntarily signed or sealed it.

However, it is extremely difficult to accept it, since it commits an error of understanding an act and intent under the Criminal Code with an external outcome without excluding the content of the perception.

(2) The Majority Opinion seems to have regarded the act of the defrauded who signed or sealed a document as a dispositive act.

However, a dispositive act in fraud refers to an act of delivering property or acquiring property directly to the actor, etc.

For example, in the case of signature swindling, in the event that a signature on a disposal document stating the intention of exemption from a debt is stolen, the declaration of intent confirmed through the disposal document can be acquired directly, so this can be viewed as a disposal act as referred to in the majority opinion.

On the contrary, in a case where a signature on a contract to establish a mortgage is stolen, the Civil Act does not take effect only with the expression of intent of the parties, but only with the registration that takes effect (Article 186 of the Civil Act). Thus, even if the defrauded takes the view that the act of claim and the declaration of real right are carried out together, the execution of the contract to establish a mortgage may take effect, and only if the registration is made with the necessary documents for registration, the pecuniary gain may be acquired. Therefore, even if the defrauded has signed or sealed a document, the document to effect the transfer of the property was prepared, and the document to effect the transfer of the property was made by the defrauded, and the external recognition of the intention of claim or real right may be recognized, it is difficult to say that the act is a criminal act that directly incurs the result of acquiring the pecuniary gain. In other words, even if the document is signed or sealed by the defrauded, the act of signing or sealing the document itself may not be deemed as a disposal act and having the actor acquire the pecuniary gain directly as a result of the document’s act of disposal.

(3) The Majority Opinion seems to require a dispositive intent, and seems to be premised on the premise that the dispositive intent is equivalent to the dispositive act.

However, according to the majority opinion, even if the preparation of a disposal document, which is not the establishment of a collateral security, is deemed a disposal act, there must be a dispositive intent at least the recognition corresponding to the content of the disposal document. However, the majority opinion is logical inasmuch as there is a dispositive intent if there is no intent corresponding to the content of the disposal document, and only

In addition, as mentioned in the Dissenting Opinion, only awareness of disposal of property and decision-making based thereon can be dispositive intent consistent with the nature and characteristics of fraud, and only those acts by such intent may be evaluated as dispositive act. As a result, in a signature-making case with no awareness of the content and consequences of the disposal document, the dispositive intent of the defrauded cannot be recognized.

(4) The Korean Criminal Act separately provides for larceny and fraud, and both the cases of receiving property or acquiring pecuniary benefits in relation to fraud are punished. However, in the case of larceny, the object of larceny is limited to property, and the statutory penalty for fraud is much higher than larceny. Meanwhile, separate provisions for punishing a person who has received property or acquired pecuniary benefits by using a minor’s fear or mental or physical disorder, apart from fraud (Article 348 of the Criminal Act). Therefore, the characteristic of fraud is to distinguish between fraud and larceny in the case of property infringement, and if the object of the act is property interest, the act of disposal and disposal should be strictly construed in accordance with the general principles of interpretation of the Criminal Act. The logic of the majority opinion affirming the establishment of fraud in the case of signature swindling of this case is contrary to the principle of punishment under the law of criminal law, by expanding the meaning of disposal and disposal, which are the elements of the crime of fraud, and by expanding the scope of punishment and the principle of punishment under the law of criminal law, which are disadvantageous to the defendant.

D. The Majority Opinion is inconsistent with the recent Supreme Court precedents that strictly interpret the criminal provisions regarding property crimes.

In relation to the crime of breach of trust, the Supreme Court held that the obligor’s obligation to implement the procedure for registration of ownership transfer on real estate pursuant to the promise of accord and satisfaction is an incidental content required of the obligor to secure the performance of the obligation to return the borrowed amount, and thus, cannot be deemed as constituting “other person’s business” to protect or manage the obligee’s property based on the fiduciary relationship as stated in the crime of breach of trust (see Supreme Court en banc Decision 2014Do3363, Aug. 21, 2014). Furthermore, the risk of actual loss of property, which can be assessed as having caused property damage in the crime of occupational breach of trust, is insufficient to the extent that the specific and real risks occur, and that there is no possibility for it to be vague (see, e.g., Supreme Court Decision 2015Do6745, Sept. 10, 2015). In light of the fact that the intrinsic nature of the crime of embezzlement is unlawful in acquiring another’s property entrusted based on the fiduciary relationship, and thus, it is reasonable to constitute an intermediate title title trust registration 2916.

The Supreme Court has recently held that there is a need for criminal punishment through these precedents, and even in a case where even a long-term criminal punishment has been imposed, it is understood that the elements of criminal punishment are excluded from the subject of criminal punishment by strictly interpreting the basic principles of the interpretation of criminal laws and regulations, and thereby establishing a series of precedents that conflict with the arbitrary exercise of State punishment rights in the crime of property. Nevertheless, the Majority Opinion’s intent to discard a number of cases, which have been maintained with reasonable grounds in relation to the interpretation of criminal punishment on the sole basis of the need for specific punishment in individual cases without clear and clear theoretical formation, is entirely inconsistent with this tendency of the Supreme Court, and as a result, it is difficult to view that it would cause confusions not only in fraud but also in the direction of the interpretation of criminal punishment.

As above, I express my concurrence with the Dissenting Opinion.

Justices Yang Sung-tae (Presiding Justice)