[1] Requirements for establishing a crime of fraud / Standard for determining whether a person has committed a crime of defraudation, which is a subjective constituent element of fraud / Standard for determining whether a person has an intent to commit a crime of defraudation, such as construction cost, etc.

[2] The legal interest in fraud (=property right) / Whether fraud is established solely on the ground that the State or public legal interest was infringed by deception (negative)

[1] A crime of fraud is established by deceiving another person to enter into a mistake by inducing a dispositive act, thereby obtaining property or pecuniary gains. The essence of fraud is the acquisition of property or pecuniary gains by deception. Since the property right, which is the protected legal interest of fraud, is established when the property right is infringed. Therefore, in order to be a deception of fraud, a crime of deception of fraud should be decided by deceiving the other party with the intent to commit the crime of unlawful acquisition or deception. In addition, as long as the accused does not confession, the subjective constituent elements of fraud should be determined by comprehensively taking into account objective circumstances such as the Defendant’s financial history, environment, details of the crime, and process of transaction before and after the crime. In particular, the establishment of fraud by deception of a construction contract should be determined by whether the victim had the intent or ability to complete the construction work even though the Defendant did not have the intent or ability to complete the construction work at the time of the contract. In such case, the court shall determine the content of the construction contract, the process of the conclusion of the contract, the process of the execution of the contract, and the result thereof, etc.

[2] Inasmuch as the legal interest in fraud is a property right, it cannot be said that fraud is established solely on the ground that the State or public legal interest was infringed by deception. Therefore, if there is a violation of administrative regulations, qualification for participation in bidding, contract procedure, etc. regulating related business or business at the time of the contract for construction work, such circumstance alone should not be readily concluded that the act of entering into a contract for construction work constitutes deception, and as such, as long as the performance of construction work is impossible even if it is performed in accordance with the contract due to such violation, the determination of whether such violation is essential

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

[1] Supreme Court Decision 2007Do10416 Decided February 28, 2008 (Gong2008Sang, 482), Supreme Court Decision 2007Do9802 Decided April 24, 2008, Supreme Court Decision 2011Do48 Decided February 27, 2014 (Gong2014Sang, 793)

Defendant 1 and one other

Prosecutor

Law Firm Yangyang, Attorneys Hwang Sung-ju et al.

Cheongju District Court Decision 2014No1137 decided June 12, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. The summary of the charge of fraud in the instant case is as follows.

Defendant 1 is the representative director of the court below's joint defendant 3 company registered as a comprehensive cultural heritage repair business entity (hereinafter "original co-defendant 3 company"), and Defendant 2 is the cultural heritage repair business entity belonging to the joint defendant 3 company. However, since part of the cultural heritage repair business among four cultural heritage repair business entities owned by the joint defendant 3 company of the court below and six cultural heritage repair business entity are not always engaged in cultural heritage repair business, Defendant 1 is registered as a cultural heritage repair business entity and carried out cultural heritage repair business in a false or unjust manner. In addition, Defendant 1 was planned to perform the cultural heritage repair business in the name of the joint defendant 3 company of the court below, and was actually incapable of directly performing the cultural heritage repair business under the name of the defendant 3 company of the court below. Nevertheless, Defendant 1 concluded a contract for the maintenance work around 00, Aug. 17, 2012 with the victim and the cultural heritage repair business entity of the court below's joint defendant 3 and the cultural heritage repair business entity of the case were directly deceiving the victim of the aforementioned cultural heritage repair business entity.

2. The lower court reversed the judgment of the first instance that found the Defendant guilty on the following grounds, and acquitted the Defendant.

First, barring any special circumstance, such as that there is a special agreement between the parties in the construction contract or that the contractor cannot perform the construction work according to the principal of the obligation unless the contractor himself/herself does not necessarily have to complete the construction work, and even if using the performance assistant or the performance agent, the contractor cannot be deemed to have failed to perform the construction work as stipulated in the construction contract. In this case, aside from punishing the act of name transfer, the payment of site transfer money, actual subcontracting, etc., which is a long-term unique practice in the repair industry of cultural heritage, as a violation of the Act on the Repair, etc. of Cultural Heritage, and the crime of obstruction of performance of duties by fraudulent means, the court below's joint defendant 3 cannot be deemed to have fulfilled the construction work properly in accordance with the contents and the deadline stipulated in each of the contracts in this case through defendant 2, and it is difficult to view

Second, the Act on the Maintenance, etc. of Cultural Heritage (hereinafter “cultural Heritage Maintenance Act”) provides for the qualification requirements of a comprehensive cultural heritage repair business entity and the submission of “the current status of cultural heritage technicians,” etc. when concluding a contract for the repair of cultural heritage is clear and objective standards to determine whether a cultural heritage engineer has the ability to perform the repair of cultural heritage, and for the purpose of public interest as a means to clarify the contract procedures and to comply with the fairness in tendering procedures. It is reasonable to impose administrative sanctions or criminal liability on violations of regulatory regulations. However, in light of the legislative intent of the Regulation of Fraud or the Regulation of Regulation of Cultural Heritage Act, it cannot be deemed that a construction contract was concluded by deceiving a person placing an order even though there is no intent or ability to perform construction works

Third, in this case, Defendant 2, the cultural heritage repair engineer who is recognized as capable of performing the repair of cultural heritage according to various performance records confirmed by the time of each contract of this case, was scheduled to perform the repair of cultural heritage, and in fact, it was completed all of the repair of cultural heritage of this case and no particular defect or problem is found, there is no evidence proving that the Defendants did not have any intention or ability to perform

3. A crime of fraud is established by deceiving another person to commit a mistake by inducing such act of disposal, and thereby receiving property or pecuniary gain by inducing such act of disposal. The essence thereof is the acquisition of property or pecuniary gain by deception (see, e.g., Supreme Court Decision 2011Do48, Feb. 27, 2014). Moreover, a crime of fraud is established when the property right, which is the protected legal interest, is infringed upon. Therefore, in order to be a deception of fraud, the intent or deception of unlawful acquisition, which is a subjective constituent element of fraud, must be the deception of the other party with the intent to commit the crime by deception or fraud. Unless the accused is led to his confession, the determination should be made by taking into account the objective circumstances such as the personal history of the accused before and after the crime, the environment, the content of the crime, and the process of performing the transaction. In particular, the determination of whether a crime of fraud by deception was established by deception, even if the accused did not have an intent or ability to complete the construction work, should also be made by deception from the victim.

Meanwhile, the legal interest in fraud is a property right, and thus, fraud is not established solely on the ground that the State or public legal interest was infringed by deception. Therefore, if there is a violation of administrative laws and regulations regulating the relevant business or affairs at the time of the construction contract, qualification for participation in bidding, contract procedure, etc., such circumstance alone should not readily conclude that the act of entering into a construction contract constitutes deception. As such, even if the performance is performed in accordance with the contract, it should be determined that the construction contract was impossible to complete the construction project. As such, the determination of whether the illegality is essential

4. We examine the judgment of the court below in light of the above legal principles. The court below found Defendant 1 not guilty on the ground that Defendant 1’s act of registering cultural heritage repair business, act of leasing a certificate of qualification, etc. and act of using a certificate constitutes a crime of obstruction of performance of official duties by fraudulent means, but with respect to fraud, the act of obstructing the performance of official duties by public officials in charge of contracts constitutes a crime of obstruction of performance of official duties by fraudulent means. However, with respect to fraud, it is difficult to deem that the Defendants did not have any intent or ability to perform construction works at the time of entering into each contract of this case. It is clear that each crime committed by the court below guilty is all the crime of protecting the legal interests and interests of the State or public, and that such act does not immediately infringe upon property rights, which is the legal interests and interests of fraud. In addition, since each contract of this case was concluded, the construction price is not immediately paid. The court below determined that since the Defendants

Such judgment of the court below is not erroneous in the misapprehension of the rules of evidence or in the misapprehension of legal principles on fraud, which affected the conclusion of the judgment.

5. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)