(영문) 대구지방법원 2016.01.14 2015노2462 | 리걸엔진

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자간(%)

(영문) 대구지방법원 2016.01.14 2015노2462

근로기준법위반등

Text

The judgment below

The guilty portion shall be reversed.

A defendant shall be punished by imprisonment for a term of four years and a fine of one million won.

The defendant above.

Reasons

1. Summary of grounds for appeal;

A. As to the crime of fraud among the facts charged in the instant case, the Defendant did not have the intent to commit the crime of deception.

B. The punishment of the lower court (five years of imprisonment, one million won of fine) is too unreasonable.

2. Determination

A. In the trial of the original instance, the Prosecutor applied for the amendment of a bill of indictment to the following facts in the indictment No. 435 of the first instance judgment among the facts charged at the trial of the original instance, and the first 165 of the second 2015 of the second 2015 of the indictment, which led to a different subject of the trial by this court’s permission. Therefore, the lower judgment was no longer maintained.

B. The Defendant’s assertion of mistake of facts concerning the modified facts charged despite the above reasons for reversal of authority as to the reasons for appeal is still subject to the judgment of this court. Therefore, this is examined.

The subjective element of the constituent element of the crime refers to the case where the possibility of occurrence of the crime is expressed as uncertain and it is acceptable, and there was an incomplete intention.

In order to determine the possibility of occurrence of a crime, not only is there a perception of the possibility of occurrence of the crime, but also there is an internal intent to allow the risk of occurrence of the crime. Whether the actor has accepted the possibility of occurrence of the crime must be determined by considering how to evaluate the possibility of occurrence of the crime if the general public is based on specific circumstances, such as the form of the act that was externally revealed and the situation of the act, without depending on the statement of the offender (see Supreme Court Decision 2004Do74 delivered on May 14, 2004). Furthermore, as long as the criminal intent of defraudation, which is a subjective element of one fraud, is not a confession of the defendant, objective circumstances such as the criminal history, environment, contents of the crime, the process of transaction, the process of execution of transaction, the relationship with the victim, etc. before and after the crime are committed.

참조판례

-대법원 2004. 5. 14. 선고 2004도74 판결

유사 판례

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