[1] The elements to establish a crime of fraud in a case where a person did not acquire property on his/her own by deception and had a third party receive property

[2] In a case where Party A prepared a formal sales contract under his/her name with a concealment of the fact of double sale to Party B and Party C who purchased double sale of the housing site, the case holding that the crime of fraud is established against Party C and Party C even if Party A did not receive the direct purchase price

[1] In order to establish a crime of fraud in cases where a criminal has had a third party acquire property without acquiring property by deception, the third party has to have the third party acquire the property by means of deception or his/her agent acting for the benefit of the criminal, or, if not, at least in relation to the intent to acquire the property from the criminal. The above intent does not necessarily have to be a positive or conclusive perception, but has sufficient awareness, and the decision should be made reasonably in light of social norms by taking into account various circumstances such as the relationship between the criminal and the third party and the victim, the motive for the act of deception or deception, the details and means of the act, the manner, the manner, and the manner of the act, and the transaction practices at the time. On the other hand, in the case of a crime of fraud whose contents are the acquisition of property, if there is a delivery of property by deception, it constitutes a crime of fraud by infringing the victim's property, and the profits accrued therefrom, and there is no influence on the part of the third party.

[2] In a case where Party A prepared a formal sales contract under his/her name with a concealment of the fact of double sale to Party B and Party C who purchased double sale of the housing site, the case holding that the crime of fraud against Party C and Party C is established even if Party A did not receive the direct purchase price

[1] Article 347 (1) of the Criminal Code / [2] Article 347 (1) of the Criminal Code

Defendant

Prosecutor

Incheon District Court Decision 2008No1799 Decided October 21, 2008

The non-guilty part of the judgment below shall be reversed, and that part of the case shall be remanded to the Incheon District Court Panel Division.

1. The facts charged and the judgment of the court below

Of the facts charged of this case, the summary of each fraud against the victim non-indicted 1 and non-indicted 2 is as follows: "the defendant had the non-indicted 3 sell the right to sell the housing site that he had received from the Korea Housing Corporation (hereinafter "the right to sell housing site") to the non-indicted 3 around April 2002; while the card price liability was no specific property at the time, even if the right to sell housing site was sold to the non-indicted 35 million won, there was no intention or ability to resolve the contractual relationship with the non-indicted 3 because it was anticipated to use the right to sell housing site again, and thus, if the right to sell housing site in this case was sold again, the dispute with the non-indicted 3 would have expected to have the new purchaser acquire the right to sell housing site in this case, and the non-indicted 2 had the non-indicted 4 sold the right to sell housing site in this case to the non-indicted 300 million won to the non-indicted 4 to the non-indicted 1, 2004.

In light of the evidence adopted, the lower court: (a) even if the Defendant had already sold the instant property to Nonindicted 3; (b) did not notify the Defendant of such circumstances; and (c) at the time, the Defendant had been aware of the necessity of the sales contract to directly sell the instant property from the above purchaser due to the restriction on the resale of the instant property; (d) sold the instant property to Nonindicted 1,40,000 won to Nonindicted 2; (b) on the grounds that the Defendant had not been aware of the fact that the Defendant had already acquired the right to sell the instant property to Nonindicted 1 and Nonindicted 2 for the purpose of selling the real estate seller’s name and/or the Defendant’s right to sell the property to Nonindicted 3; and (b) in so doing, it was difficult to view that each of the instant sales contracts was executed by Nonindicted 1 and Nonindicted 2 to have been executed by the Defendant for the purpose of selling the real estate seller’s name and/or the Defendant’s right to sell the real estate seller’s name and/or the Defendant’s right to sell the instant property in order.

2. Judgment of the Supreme Court

However, the lower court’s determination that the Defendant’s act constitutes deception by omission is difficult to accept for the following reasons, on the grounds that it is difficult to view that the Defendant had an intention to illegally acquire the sales price to a third party or Nonindicted 1, who was a third party, was not guilty.

In order to establish a crime of fraud in cases where a criminal has had a third party receive property without acquiring property by deception, it shall be determined reasonably in light of social norms by taking into account various circumstances, such as the relationship between the criminal and the third party and the victim, motive, circumstance, means and method of deception or deception, the contents and manner of the act, and the transaction practices at the time of the transaction. On the other hand, in a crime of fraud whose contents are the acquisition of property, if there is any property delivery by deception, it shall be in the relationship between the third party and the criminal, or the agent acting for the benefit of the criminal, or, if not, at least in relation to the intent to acquire the property, there shall be an intent to have the third party acquire the property. Such intention shall not be necessarily required to be a positive or conclusive perception, but it shall be determined reasonably in light of social norms, in view of the relationship between the criminal and the third party and the victim, as well as the motive for the act of deception or deception, if there is any property delivery by deception, and the benefits accrued therefrom shall be no influence on the property of the victim.

The following circumstances acknowledged by the lower court based on the facts established by the lower court, that is, each of the instant sales contracts was caused by the Defendant’s double sale of the instant sales right, and the name-free or Nonindicted Party 1, who received each of the instant sales proceeds, cannot be deemed to be a third party who was entirely related with the Defendant, as a person who entered into a sales contract on the instant sales right directly or formally between the Defendant and the Defendant; the Defendant, based on his own intent, entered into each of the sales contracts with the victims in the form of a seller, and received honorariums accordingly; and if the Defendant did not cooperate with each of the instant sales contracts, the name-free or Nonindicted Party 1, who was the actual seller, could not receive each of the sales proceeds from each of the instant sales contracts from Nonindicted Party 1 or Nonindicted Party 2, and due to the Defendant’s cooperation, it is sufficient to view that each of the instant sales contracts had the actual seller’s name or Nonindicted Party 1, the actual seller’s intent to acquire each of the sales proceeds, and ultimately did not have any economic benefits from each of the Defendant.

Nevertheless, the court below found the defendant not guilty of this part of the facts charged on the ground that his name-in-fact or non-indicted 1 reselled the right to sell this case for his own economic interest and it cannot be deemed that he had an intention to illegally acquire each purchase price from a third party or non-indicted 1 on the ground that it is connected to the defendant's economic interest. The court below erred in the misapprehension of legal principles as to the establishment of a crime of fraud in a case where a third party had a third party receive property, and such illegality has influenced the judgment.

3. Conclusion

Therefore, the non-guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)