(영문) 대법원 2016.2.18.선고 2015도14187 판결

1. The summary of the facts charged in the instant case is that the Defendant, as the representative director of the Company E, was awarded a contract from the head office or the owner of the store to perform the work for each process, while the head office and each owner of the building did not pay the completed portion properly or paid the payment in substitutes, the Defendant did not have the ability to pay the construction cost due to the shortage of cash.

On June 2012, 2012, “A victim G who carries out the business of attaching films shall pay all outstanding amounts before the end of the year” with the false statement to the effect that “A project shall be implemented, and the price of KRW 4,00,000 shall not be paid, etc. from April 2012 to March 2013, when performing the work of I Postnatal Care Center from April 2012 to March 2013, the victim G obtained financial benefits equivalent to the total amount of KRW 268,154,08,00 from the total 12 victims and did not pay the cost of construction or goods.

2. In light of the circumstances stated in the judgment below, the court below convicted the victims of the facts charged of this case on the ground that the Defendant appears to have not been sufficiently able to pay the construction cost at the time of entering into each of the instant construction contract with the victims, and that the Defendant was aware of the fact that all victims cannot pay the construction cost at the time of payment

3. However, it is difficult to accept the judgment of conviction above for the following reasons.

A. Whether fraud is established through the acquisition of pecuniary profits equivalent to the cost of construction should be determined at the time of the contract. Even if it is impossible to repay the cost of construction due to changes in economic conditions after the contract is concluded, this is merely a non-performance of civil liability, and criminal fraud cannot be deemed established (see, e.g., Supreme Court Decisions 97Do249, Apr. 11, 1997; 2015Do2844, Jun. 11, 2015). As long as the defendant does not confession, the subjective constituent elements of fraud should be determined by comprehensively taking into account the objective circumstances such as the defendant’s financial history before and after the crime, environment, details of the crime, process of transaction, and relationship with the victim, etc., and the recognition of guilt is no more than 100 parts of the crime of fraud, even if there is no doubt that there is no possibility for a judge to have a reasonable doubt in the process of the transaction (see, e.g., Supreme Court Decision 2008Do2893, Jun. 12, 20008).

Inasmuch as it is the same as the determination of the nature of a crime by reason of the occurrence of the occurrence of a crime that could immediately lead to the presumption that there was an willful negligence in fraud. In such a case, even if the business manager was aware of the possibility of nonperformance, it is reasonable to believe that such a situation is highly likely to avoid, and when there was an intent to make efforts to faithfully perform the contract, it is difficult to conclude that there was a criminal intent by deception (see, e.g., Supreme Court Decisions 2001Do202, Mar. 27, 201; 2015Do1809, Jun. 11, 2015).

B. According to the evidence duly admitted by the court below, the following circumstances are revealed.

(1) From March 2011 to March 2013, the Defendant awarded a contract for the installation of new interior interior interior interior interior interior interior interior interior interior interior interior interior interior interior works from the owner of F or its chain store, which is the head office of a postnatal care center franchise, and performed the construction of each postnatal care center located in I Trisung, Doe, wood, wood, transmission, spath, Nowon-gu, Nowon-gu, and Permitted branch. Each construction was conducted in a way that materials were supplied from material companies and subcontracted parts to the construction company for a specific process.

(2) In the construction work of Samsung, Samsung, Samsung, Gi, Dong, and Song-dong branch, most of the materials or companies were paid for the construction work. Among them, the construction work was not paid part of the construction work price by the owner of some branch, and there was a delay in the payment of the construction work price to the materials or companies of the construction work in question. However, there was a benefit arising from the construction work that was received from another construction work that was received later, and the payment of the price was completed as a substitute for the payment within one month from the initial payment date. On the other hand, the unpaid amount included in the facts charged in the instant case is most of the price arising from the construction work executed from around September 201 to March 2013.

(3) Although the Defendant received approximately KRW 3,50,000,000,000,000 which was not received, among the construction cost of an additional branch that was jointly ordered by equity investors, around October 2012, the Defendant was not paid due to the financing circumstances on the part of the ordering person, and instead, calculated approximately KRW 2,50,000,00 from H as KRW 3,50,000,00 in the form of payment in lieu of the said amount. However, the said shares were much evaluated and commercialized among the cities, and it was difficult for the Defendant to make payments to the victims of the material and construction business in the additional branch that completed the supply of materials or construction works, as well as it was difficult for the Defendant to make payments to the victims of the construction work in the Nowon-won branch from September 2012.

(4) In particular, with respect to the Labor Standards Branch, the Defendant offered a lump sum subcontract for KRW 650 million to J. Accordingly, the victims, who are the construction enterprises, supplied materials or performed construction works upon entering into a verbal contract with J., and the Defendant, who failed to receive a partial payment of the construction cost from the owner of the construction, could not pay the subcontract price to J. Accordingly, the victims promised to demand the Defendant to pay the direct payment to some victims.

(5) Although the Defendant was in arrears with value-added tax of about KRW 29 million around September 2012 and about KRW 144 million around November 2012, the Defendant was due to the failure to receive value-added tax from the owner of a branch of a postnatal care center, it is difficult to readily conclude that the Defendant did not have the ability to pay the victims.

(6) From March 2012 to March 12, 2012, the Defendant’s total sales of approximately KRW 9.2 billion out of approximately KRW 2.4 billion. Among them, the outstanding amount that occurred to sewage companies, such as the instant facts charged, is about KRW 200 million, and the outstanding amount that occurred to sewage companies, as in the instant facts charged, does not exceed KRW 200 million. Examining the above circumstances in light of the Defendant’s contract and settlement practice up to the time, if the Defendant had received the construction payment from the building owner of Busan Branch, not by payment in kind, but by cash, it cannot be deemed that there was considerable doubt that there was a significant change in the external economic conditions after the goods supply and contract, and that there was no reasonable doubt that the Defendant had made the contract or the financial profit of each of the instant parties.

D. Nevertheless, the court below determined that the defendant's criminal intent is recognized on the basis of only the circumstances as stated in its holding. The court below erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the criminal intent of defraudation in fraud, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.