(영문) 서울고등법원 2015.10.02 2015노1666 | 리걸엔진

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(영문) 서울고등법원 2015.10.02 2015노1666

특정경제범죄가중처벌등에관한법률위반(사기)

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The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Since the Defendant had the intent and ability to pay the price at the time of receiving the goods from the victim, the Defendant cannot be found to have the intention to acquire the goods by deception.

B. The lower court’s sentence of unreasonable sentencing is too unreasonable.

2. Determination

A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud to determine the mistake of facts, is to be determined by comprehensively taking account of the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of transaction before and after the crime unless the Defendant confessions. The intent of the crime is sufficient, not a conclusive intention, but a willful negligence.

In particular, the establishment of fraud by defraudation in the transaction of goods should be determined by whether there was an intentional intent to acquire goods from the victim by making a false statement as if the victim would pay the price of goods, although there is no intention or ability to repay the price of goods to the defendant as of the time of the transaction.

(See Supreme Court Decision 2006Do2864 Decided June 27, 2006, etc.). In full view of the following facts and circumstances recognized by evidence duly adopted and investigated by the original court and the original court, it can be recognized that the Defendant was supplied with goods and acquired them by deception even though the Defendant was unable to settle the price at the time when he was to be supplied with goods from the victim, even if he was unable to do so.

Ultimately, the judgment of the court below which recognized that the defendant has a criminal intent to acquire the fraud cannot be said to have an error of mistake of facts as alleged by the defendant.

① The Defendant, at the lower court, led to the confession of all the facts charged in the instant case, and considering the detailed review of the evidence and records, the confession made by the Defendant in the lower court does not have any ar

There is no reason to see the lack of credibility or credibility, and on the other hand, there was an intention to perform and a ability to perform.

참조판례

-대법원 2006. 6. 27. 선고 2006도2864 판결

유사 판례

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-서울고등법원 2013.11.01 2013노1556

-서울북부지방법원 2013.11.06 2013고단415