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(영문) 서울고등법원 2013.07.12 2013노1
특정경제범죄가중처벌등에관한법률위반(사기)등
Text

All judgment of the court below shall be reversed.

Defendants shall be punished by imprisonment for two years.

Reasons

1. Summary of grounds for appeal;

A. Defendant B (1) 1) misunderstanding of facts or misunderstanding of legal principles all the objective facts of each of the facts charged in the instant case. However, the Defendant borrowed money from the victims or received each contract money with conviction on the existence of overseas funds in the instant case and on the government side. As such, at the time, the Defendant did not have the intent to commit fraud and defraudation. 2) The sentence of the lower court on unreasonable sentencing is too unreasonable.

B. Defendant A1) misunderstanding of facts or misunderstanding of legal principles recognize the objective facts of each of the facts charged in this case. However, there exists the foreign funds in this case, and the Defendant either borrowed money from the victims or received each contract money in trust to the purport that “the said foreign funds will be executed repeatedly” by the above Defendant B, who is responsible for the execution of the said foreign funds, and thus, at the time, the Defendant had the intent and ability to repay to the victims, while there was no intention to commit fraud and fraud. 2) The lower court’s sentence of unfair sentencing is too unreasonable.

C. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

2. Determination

A. This Court made a decision ex officio to hold concurrent trials with each appeal case against the first and second judgment. The first and second judgment of the court below against the Defendants are concurrent crimes under the former part of Article 37 of the Criminal Act in relation to the crime of violation of Article 37 and the second judgment of the court below, and should be sentenced to a single sentence within the scope of the term of punishment for concurrent crimes under Article 38(1) of the Criminal Act. In this regard, the first and second judgment of the court below cannot be exempted from all reversal.

However, despite the above reasons for ex officio destruction, the defendants' assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court, so we will examine this.

B. The Defendants’ assertion of misunderstanding of facts or misapprehension of the legal principles also stated in the first and second court judgment.

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