[1] Whether a victim's actual loss is required for the establishment of a crime of fraud (negative), and whether the value of the property or the profit on property affects the establishment of a crime of fraud (negative)

[2] Details of property gains acquired by a third party in the real estate owned by the third party by deceiving the third party for the purpose of financing money from a third party or being supplied goods on credit, and the method of calculating the amount of profit under the premise of applying Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[3] The case rejecting the defendant's ground of appeal on the calculation of the amount of fraud on the ground that the specific value of the pecuniary gain acquired by the defendant is merely the reason for sentencing and it does not affect the establishment of the crime in the case of a crime of gain fraud under the Criminal Code, not a violation of the Act

[4] Whether a crime of fraud is established even though considerable consideration was paid in a crime of fraud, the content of which is the taking-off of property, or no damage was inflicted on the victim's entire property (affirmative)

[5] In case of the acquisition of property, such as real estate, whether the burden of collateral security, etc. should be deducted from the market price equivalent to real estate when calculating a specific value under the premise of Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (affirmative)

[6] The case rejecting the defendant's argument in the grounds of appeal that in the case of a crime of fraud of property under the Criminal Act, not a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the crime of fraud is not established on the ground that it does not affect the establishment of a crime

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [3] Article 347 of the Criminal Code, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [4] Article 347 of the Criminal Code / [5] Article 347 of the Criminal Code, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [

[1] [5] Supreme Court en banc Decision 2005Do7288 Decided April 19, 2007 (Gong2007Sang, 923) / [1] Supreme Court Decision 2003Do4914 Decided December 26, 2003 (Gong2004Sang, 298) / [2] Supreme Court Decision 2000Do137 Decided April 25, 2000 (Gong2000Sang, 1360) / [4] Supreme Court Decision 2000Do1899 Decided July 7, 200 (Gong200Ha, 1911) (Gong206Do7470 Decided January 25, 2007)

Defendant

Defendant

Attorney Kim Young-young

Seoul High Court Decision 2010No1255 decided September 16, 2010

The appeal is dismissed.

The grounds of appeal by the defendant and the public defender are also examined.

1. Judgment on the assertion on the fabrication of private documents and the uttering of private documents

Based on the evidence duly adopted and examined by the first instance court, the lower court found the Defendant guilty of this part of the charges, on the ground that the fact that the Defendant prepared and used the instant real estate sales contract in the name of Nonindicted Party 1 without the consent of Nonindicted Party 1.

Examining the reasoning of the judgment below in light of the records, the above fact-finding and judgment of the court below are justified.

The court below did not err by misapprehending the legal principles regarding the establishment of the crime of forging private documents or by exceeding the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

2. Determination on the assertion of fraud against the victim non-indicted 2

The allegation in the grounds of appeal in this part is that, after the defendant deceivings the victim on the part of the victim and obtains a certificate of the personal seal impression, etc. issued under the name of the victim necessary for the establishment of a collateral security, the establishment of a collateral security shall be completed with the maximum debt amount of KRW 90 million on the commercial building owned by the victim, and 20 million out of the loan amount of KRW 60 million from Nonindicted 3 shall be paid to the victim as the down payment of the commercial building to the victim. As such, the above maximum debt amount of KRW 90 million shall be deemed as property profits.

However, fraud under Article 347 of the Criminal Act is established by deceiving a third party and acquiring property or pecuniary benefits from the defective intent. Since the essence of fraud is to acquire property or pecuniary benefits from deception and thus infringe on the other party's property, it does not require actual loss to the other party (see Supreme Court Decision 2003Do4914, Dec. 26, 2003, etc.). It is not problematic whether the value of the property or pecuniary benefits from the delivery of the property or pecuniary benefits is much much (see Supreme Court en banc Decision 2005Do7288, Apr. 19, 207). Meanwhile, if a third party obtains pecuniary benefits from the third party by deceiving the third party for the purpose of receiving money from a third party or acquiring pecuniary benefits from the third party's real property, a person who obtains pecuniary benefits from the third party's real property as collateral within the extent of the market value of the real property after deducting the amount equivalent to the amount of such pecuniary benefits from the market value of the real property at the time.

In light of the above legal principles, in the case of the crime of this part of the crime of fraud under Article 347 of the Criminal Act, which is not a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes due to fraud, the specific value of property profits acquired by the defendant by establishing the above right to collateral security is merely about the sentencing, and thus does not affect the establishment of the above crime. Thus, the above argument by the defendant cannot be a legitimate ground for appeal

Although the judgment of the court below has some parts in its reasoning that do not comply with the legal principles on the fraud fraud fraud fraud, it is justifiable to dismiss the above argument of the defendant and to recognize the guilty of fraud.

3. Determination on the assertion of fraud against the victim non-indicted 4

The argument in this part of the grounds of appeal is that the market price of the shopping mall of this case, which the defendant acquired by deceit, shall not be KRW 1.035 billion, but be KRW 700 million, which is the purchase price of this case. Based on this, the purport of the judgment below is that if the sum of the maximum debt amount of each right to collateral security established on the shopping mall of this case is deducted from the sum of KRW 715 million, it shall not be constituted a fraud

However, in the case of fraud involving taking advantage of property, if there is a delivery of property due to deception, it constitutes fraud by itself. Even if considerable consideration has been paid or no damage has occurred to the whole property of the victim, it does not affect the establishment of fraud (see, e.g., Supreme Court Decision 2000Do1899, Jul. 7, 2000): Provided, That in applying Article 3 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (see, e.g., Supreme Court en banc Decision 2000Do1899, Apr. 19, 207) that stipulates the specific amount of profit as a constituent element for crime even though it is a fraud regarding taking advantage of property, such specific amount of profit shall be determined within the market value of the real property, etc., the amount of secured claim within the scope of the maximum debt amount of the right of collateral security, the amount of the claim amount necessary for the seizure, and whether there is evidence of the above amount of profit (see, e.g., Supreme Court en banc Decision 2005Do7888).

In light of the above legal principles, in the case of the crime of this part of the crime of fraud of Article 347 of the Criminal Act, not the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes due to fraud, it shall not affect the establishment of the above crime of specific amount of profit which deducts the amount to be borne, such as the amount of mortgage, from the value of the commercial building of this case acquired by the defendant, the specific amount of profit from which the amount to be borne,

Although the judgment of the court below has some parts in its reasoning that do not comply with the legal principles on the fraud fraud fraud fraud, it is justifiable to dismiss the above argument of the defendant and to recognize the guilty of fraud.

4. Judgment on the assertion of unfair sentencing

According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable does not constitute a legitimate

5. Conclusion

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

Justices Jeon Soo-ahn (Presiding Justice)