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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal is that the failure to notify the fact that the instant building was an illegal building at the time of entering into a lease agreement with D constitutes deception in fraud. Although the statement made by D is consistent and credibility, the judgment of the court below which acquitted the Defendant of the facts charged of this case, is erroneous in the misapprehension of legal principles or in the misapprehension of legal principles.
2. Determination
A. The intent of defraudation, which is a subjective constituent element of fraud in the relevant legal doctrine, is to be determined by comprehensively taking account of the objective circumstances such as the financial history, environment, details and contents of the crime before and after the crime, and the process of transaction execution, unless the defendant is led to confession.
(See Supreme Court Decisions 94Do2048 delivered on October 21, 1994; 95Do3034 delivered on March 26, 1996, etc.). Meanwhile, deception as a requirement for fraud refers to any affirmative or passive act that has a duty to maintain one another in respect of property transaction widely and in good faith, and it does not necessarily require false indication as to the essential part of a juristic act, and it is sufficient to say that it is the basis of judgment for an actor to conduct an act of disposal that he wishes to dispose of property by omitting the other party in mistake. Thus, in a case where it is recognized that the other party to a transaction would not be engaged in the transaction if he/she received a notice of certain circumstances, he/she is obligated to notify the other party of such fact in advance in accordance with the principle of good faith.
Nevertheless, it is necessary to establish a crime of fraud by deceiving the other party by disregarding the fact that the notification of the failure to notify is to be made.
B. (See, e.g., Supreme Court Decision 2003Do7828, Apr. 9, 2004).
Judgment
The evidence duly adopted and examined by the court below.