The standard of determining the criminal intent of defraudation, which is a constituent element of fraud / Whether a crime of fraud is committed in cases where the defendant notifies the victim of the crime or promises the result of the scarfication in return for the payment of consideration under the pretext of deception, etc. (affirmative with qualification)

The intent of the crime of defraudation, which is the constituent element of fraud, shall be determined by taking into account objective circumstances such as the defendant's refeasible power, environment, details of the crime, possibility of performance of the act of deception, execution process, etc., insofar as the defendant does not make a confession. Furthermore, if the defendant notified the victim of the feasible behavior or promises the result of the feassive clothes to be carried out under the pretext of deception, etc., if the defendant exceeds the limit permitted as traditional custom or religious act,

Article 347 of the Criminal Act

Supreme Court Decision 95Do424 delivered on April 25, 1995 (Gong1995Sang, 2014) Supreme Court Decision 2007Do10917 Delivered on February 14, 2008

Defendant

Prosecutor

Suwon District Court Decision 2015No6916 decided July 14, 2016

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. Article 308 of the Criminal Procedure Act, which provides for the principle of free evaluation of evidence, provides that the probative value of evidence shall be free to be determined by the judge’s free evaluation of facts, and thus, a fact-finding judge shall take into account the perception obtained in the trial proceedings and the examined evidence while conducting fact-finding. In addition, the judge’s determination on the probative value of evidence shall conform to logical and empirical rules, and the degree of formation of a conviction to be found guilty in a criminal trial is to the extent that there is no reasonable doubt, but to the extent that it does not require any possible doubt, and rejection by causing a suspicion without reasonable grounds exceeds the limit of the principle of free evaluation of evidence is not permissible (see Supreme Court Decisions 2004Do221, Jun. 25, 2004; 2007Do1950, May 10, 2007, etc.).

Meanwhile, insofar as the Defendant does not make a confession, the intent of the crime of defraudation, which is the constituent elements of the crime, is to be determined by comprehensively taking account of the objective circumstances such as the Defendant’s financial power, environment, details of the crime before and after the crime, the possibility of the act of deception, and the process of performing the act of deception (see Supreme Court Decision 95Do424, Apr. 25, 1995). In addition, in a case where the Defendant notified the victim of the act of deception or promises the result thereof, and received compensation under the pretext of deception, etc., if it exceeds the permissible limits as traditional custom or religious act (see Supreme Court Decision 2007Do10917, Feb. 14, 2008, etc.).

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. A. Around November 2006, the victim went through the ○○○○○○○ located incheon-si, and took advantage of Nonindicted Party 1, the victim took an action against the victim’s mental fissioned Nonindicted Party 2, and the Defendant, at that time, took a cover of ear to Nonindicted Party 2, and made him/her take a safeguard measure against his/her speech and treatment. From that time to February 2, 2007, the victim got Nonindicted Party 2 to live together with the Defendant at the Defendant’s residence, but Nonindicted Party 2 returned to his/her house without any particular call.

B. (1) Around July 2007, the Defendant told Nonindicted 2 to send the phone call to himself and again left Nonindicted 2, and the Defendant said that it is necessary to KRW 2 million to drive away Nonindicted 2’s body, and on August 21, 2007, the victim transferred KRW 2 million to the Defendant on August 21, 2007.

(2) Around November 2007, Nonindicted Party 2 returned to her house. On September 24, 2008, the Defendant sent 1,50,000 won to the effect that the Defendant continued to drive her ear while making a telephone call with the victim on September 24, 2008. On February 9, 2009, Nonindicted Party 2 sent the same purpose and KRW 50,000 to the same effect. The victim transferred the money to the Defendant around that time.

C. Around September 201, 201, the victim sought ○○○○○○○○ after making a telephone call with Nonindicted Party 1 and sought the Defendant, and the Defendant’s defect in the victim’s talks while making a talk with the Defendant, “it is necessary to find out the Plaintiff with a golf machine by entering the name and birth date of the son in the golf machine so that she has a son, and thereby making it hard to drive away.” The victim demanded KRW 990,00,000,000,000 to mean that she shall return to her family members.” On September 26, 2011, 201, the victim remitted KRW 99,000 to the Defendant.

D. On September 201, the Defendant stated that he would have found the victim once every month in the future. When the victim sought the Defendant around November 201, the Defendant changed his talk about his father’s wife, and the Defendant was able to have his talked on his father’s her son’s son’s son’s son’s son’s son’s son’s son and son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s her son’s son’s her son’s son.

E. On December 30, 2011, the Defendant: (a) stated that “the victim who found the Defendant himself must find ear covered by ear all the earners; (b) it is necessary to do so; (c) 3.9 million won as above; and (d) the victim remitted KRW 3.9 million to the Defendant on December 30, 201.”

F. Around December 201, when the victim lent KRW 60 million to his wife, the victim was returned KRW 50 million among them, and around that time, the Defendant was talking about the above facts while finding the Defendant, and the Defendant told the victim of the above facts. Around that time, the Defendant told the victim that “on the face of ear with ear and ear, the address and ear would be displayed on ear and that the entire house would be not good.” The victim sent the money to her wife on January 16, 2012, and the Defendant used all the said money.”

3. As to the facts charged in this part, the court below found the Defendant not guilty on the ground of the reasons indicated in its reasoning, such as the following: (a) there is insufficient evidence to acknowledge that the Defendant received the above money under the pretext of deception; and (b) there is insufficient evidence to acknowledge that the Defendant, while knowing the imminent situation of the victim, did not believe the effect of the money, by deceiving the victim and deceiving the victim by actively deceiving the victim without the intention to do so.

4. However, according to the evidence duly admitted, the following circumstances are revealed.

A. The Defendant experienced personal difficulties, such as divorce, and 205, went through ○○○○ and passed away from 2005. The Defendant was working as an assistant nurse, and was employed at a marina shop, and was not an infinite who was not an infinite nor an infinite person, and had no experience in getting out of the period before the victim met. Nevertheless, the Defendant actively called the victim’s family with a cover of her ear, and demanded the victim to take out her ear, thereby preventing him from driving out his ear, and the Defendant was able to receive the right to use the new world, and the investigative agency said that he was given the right to use the new world.

B. (1) The Defendant stated at an investigative agency that it is not necessary to set a certain place, but to take salt sources in consideration of his/her own intent to the extent that he/she has hidden himself/herself, as long as he/she finds it difficult to do so, and that using his/her flag costs as a living cost according to his/her belief. As such, it is not possible to distinguish between the flag cost and living cost, and that it is necessary to keep him/her out of the proposal.

(2) The Defendant, in fact within the outdoor golf driving range located in the site of ○○○○○○, committed an act of driving away the Defendant’s name and date of birth of Nonindicted 3, written the victim’s son’s children on the golf machine, and carried out golf with the golf machine. However, the outdoor golf driving range located in the site of ○○○○○○ is to establish a training center for ○○○○○, which was located in a de facto marital relationship with the Defendant, and it is not a facility for religious rites, but a facility for religious rites, and the Defendant was engaged in golf as a sports act, such as growing golf and practice from Nonindicted 4 in the ordinary golf driving range.

(3) Such acts asserted by the Defendant cannot be deemed as the form of indecent or ordinary religious acts in light of the empirical rule.

C. From September 201 to September 201, the Defendant told the victim that he/she would recover himself/herself once in one month, and came to know of the fact about the victim’s family or financial relationship in the course of dividing conversationss when he/she found himself/herself according to his/her horses, the Defendant actively demanded the victim to return money under the name of the victim, such as the instrument cost, etc. to drive away his/her identity, and received money from the victim as seen earlier.

D. (1) On January 16, 2012, the lower court determined that there was a lack of evidence to acknowledge that the Defendant alleged to the effect that it was a borrowed money, and that it was received under the name of a flag expenses.

(2) However, at the time of demanding the victim to pay the above KRW 50 million, the Defendant recognized the fact that the Defendant stated that the Defendant stated that “the Defendant and her wife and satisfe are not good in ear and the entire draft of the house, if you use the instant money with ear,” and that “I will want to offer money for the victim’s family members.” In addition, the Defendant stated the same purport consistently.

As seen earlier, in light of the background leading up to the Defendant’s delivery of money to the Defendant several times and the method of the Defendant’s assertion, it is reasonable to view that the victim took such remarks from the Defendant and sent the money to the Defendant, and that the Defendant was able to prevent the occurrence of the victim’s family members from doing so only if he/she is required to use the money and make the Defendant take advantage of the victim’s family members, and that he/she remitted the money to the Defendant. Furthermore, as long as the victim remitted the money to the Defendant to use it, whether the money was returned later does not affect the establishment of deception or fraud.

E. As above, the Defendant, along with Nonindicted 4, who was in de facto marital relationship at the time of receiving money from the victim, was carrying out construction of various buildings and installation of facilities on the ○○○ Housing Site, and thus, the Defendant was in need of funds, such as construction cost. Meanwhile, there is no data on the fact that the Defendant paid each of the above money at the expense of the victim, such as the gambling

F. The victim believed that Nonindicted 2’s disease was due to ear, and that the Defendant could drive away and treat ear by driving his ear, and, in accordance with the horses and demands of the Defendant related thereto, remitted a total of KRW 18890,000,000 including the part found guilty by the lower court, and extended a loan from the bank to raise money. Meanwhile, when the victim left Nonindicted 2 to the Defendant, she separately paid KRW 10,000,000 in cash to the Defendant whenever she visited the Defendant.

G. On January 3, 2014, the Defendant was convicted of the Defendant on January 3, 201, and around the time when Nonindicted Party 2’s discharge date, which was the date of Nonindicted Party 2’s hospitalization at a mental hospital, was set on January 17, 2014, and was sent to Nonindicted Party 2 by Nonindicted Party 2. The victim discharged Nonindicted Party 2 accordingly and sent it to the Defendant for a living together with the Defendant. Nonindicted Party 2 died of a traffic accident on September 19, 2014.

5. Examining the aforementioned facts and legal principles in light of the following: (a) the Defendant’s qualifications and experience; (b) details of the Defendant’s receipt of the said money from the victim; (c) details of the Defendant’s refusal or promise in favor of the victim; (d) the Defendant’s actual nature of the Defendant’s act committed on behalf of the victim; (b) the total amount and actual use of the said money paid by the Defendant for a long time; and (c) the victim’s financial status that the victim was required to receive due to unexpected psychological conditions and loans; and (d) it is reasonable to deem that the Defendant’s act of speaking to the victim as above and receiving KRW 18.89 million in total from the victim during a long period of time goes beyond the limit permitted as traditional custom or religious act; and (d) criminal fraud is established. Although the victim paid the said money in favor of Nonindicted 2’s flag for medical treatment, and received the said money through this, it does not interfere with the judgment above solely on the ground that the Defendant’s aforementioned act was a harsh or fraudulent result in order to receive the said money.

Nevertheless, the lower court found the Defendant not guilty of this part of the facts charged on grounds contrary to its stated reasoning. In so doing, the lower court erred by misapprehending the legal doctrine regarding deception of fraud, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules. The allegation in the grounds of appeal

Meanwhile, as long as the part of innocence of the lower judgment should be reversed, the conviction part of the lower judgment which was prosecuted for a single comprehensive crime should also be reversed. Therefore, all of the lower judgment should be reversed.

6. Therefore, 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 on the bench.

Justices Park Sang-ok (Presiding Justice)