[1] The method of determining the criminal intent of defraudation in the case of fraud by defraudation of transaction goods and bill discount money

[2] In a case where goods are supplied by the victim and the bill is discounted at the same time, the case reversing the judgment of the court below which found the not guilty of the fraud of the goods and found only the defraudation part of the bill to be guilty on the grounds of misapprehension of legal principles as to

[3] In a case where the issuance of a credit guarantee certificate by the Korea Credit Guarantee Fund is made by a deceptive act of the defendant, whether fraud is established (affirmative), and the property profit acquired by the defendant (=amount equivalent to the amount of credit

[1] The intent of fraud, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of performing transaction before and after the crime, insofar as the Defendant does not make a confession. The criminal intent of the crime is sufficient not to be a definitive intentional intent but to dolusent intent. In particular, the establishment of fraud through deception in the commodity transaction relationship shall be determined by whether there was an intentional intent to acquire goods, etc. from the victim by making a false statement as if the Defendant would repay the price of supplied goods even though there was no intent or ability to pay the price of supplied goods at the time of transaction. In the event that the money was received through the method of a bill discount, it shall be determined by whether there was an intentional intent to acquire the goods, etc. from the victim as if the bill was predicted that the payment would not be made at the due date or

[2] In a case where a bill is delivered at the same time on the one hand after being supplied with goods from the transaction partner, the case reversing the judgment of the court below which found the defendant guilty of the part concerning the fraud of the bill, and reversed the legal principles as to the criminal intent of defraudation in fraud and violation of the rules of evidence, in the absence of special circumstances to deem that only one of them had the intent to acquire money

[3] If the issuance of a credit guarantee certificate by the Korea Credit Guarantee Fund is made by the Defendant’s deception, the crime of fraud is established immediately, and the defendant’s property profit thereby is equivalent to the amount of credit guarantee.

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code / [3] Article 347 of the Criminal Code

[1] Supreme Court Decision 96Do2904 delivered on February 14, 1997 (Gong1997Sang, 850) Supreme Court Decision 97Do2609 delivered on December 26, 1997 (Gong1998Sang, 475) Supreme Court Decision 2005Do7481 Delivered on November 24, 2005, Supreme Court Decision 2006Do2864 Delivered on June 27, 2006 / [3] Supreme Court Decision 82Do308 delivered on April 26, 1983 (Gong1983, 930). Supreme Court Decision 2005Do6026 delivered on November 10, 2005

Defendant

Defendant

Attorney Jeon-Gyeong et al.

Busan High Court Decision 2007No455 decided Nov. 14, 2007

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal by defense counsel are also examined.

1. As to the fraud against the victim non-indicted 1 corporation

The criminal intent of defraudation, which is a subjective constituent element of fraud, has to be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, details of the crime, and the process of performing the transaction before and after the crime. The criminal intent is sufficient not to be conclusive but to do negligence. In particular, in a commodity transaction relationship, the establishment of fraud by defraudation shall be determined by whether there was an intentional intent to acquire goods, etc. from the victim in spite of the defendant's intent or ability to repay the price of supplied goods as of the time of transaction. In a case where the money was received by means of a bill as a discount, if the bill was predicted that the payment would not be made at the due date or there was no conviction that the bill would be paid at the due date without notifying the addressee of such content (see Supreme Court Decisions 97Do2609, Dec. 26, 1997; 2009Do42686, Nov. 26, 2005; 2006Do46786, Nov. 26, 2007

Examining the reasoning of the judgment below in light of the above legal principles and evidence, the court below is just in holding that even if the financial situation of the non-indicted 2 corporation operated by the defendant from January 2004, 2004 gets supplied goods or discounted bills from the victim non-indicted 1 corporation because the financial situation of the non-indicted 1 corporation 2 corporation - operated by the defendant her from around January 2004 - even if the bill is supplied with goods or discounted bills, it can be recognized by receiving the money in the name of the goods and the discount on the bill, regardless of the absence of the intent and ability to properly settle the money at the payment date.

However, while the court below found the defendant not guilty on the grounds that it is difficult to recognize the crime of defraudation with respect to the part of the facts charged in this case prior to December 2003, it is not acceptable to find the defendant guilty of defraudation of the part of the bill discount (the fact of defraudation of the bill discount amount of December 18, 2003, KRW 97,329,100 and KRW 104,303,100 which is the bill discount amount of December 18, 2003). In the same time, in the case where the defendant received the bill discount from the victim and delivered the goods, and the delivery of the bill was made, there is no special circumstance to see that there was an intention of defraudation only one of them (see Supreme Court Decision 95Do2656, Jan. 23, 196). The court below did not err in the misapprehensionation of legal principles as to the crime of defraudation of the bill, including the victim's discount on December 18, 2003.

2. As to the fraud of the Victim Credit Guarantee Fund

In light of the records, the court below's finding that the defendant was issued a credit guarantee certificate by deceiving the staff in charge of the Korea Credit Guarantee Fund by presenting financial statements that the net profit per party of the non-indicted 2 corporation was fabricated in black, is just in light of the records, and there is no violation of the rules of evidence or misapprehension of the legal principles as to the criminal intent and causal relationship as alleged in

However, if the issuance of a credit guarantee certificate by the Korea Credit Guarantee Fund is made by deception of the defendant, the crime of fraud is established immediately, and the defendant's property profit derived therefrom is equivalent to the amount of credit guarantee (see, e.g., Supreme Court Decisions 82Do308, Apr. 26, 1983; 2007Do1274, Apr. 26, 2007). The court below erred in the misapprehension of legal principles as to the timing for the issuance of the credit guarantee certificate and the calculation of property profit, which affected the conclusion of the judgment, as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, among the judgment of the court below, the part on the fraud of the bill discount for the victim non-indicted 1 corporation and the fraud of the victim's credit guarantee fund cannot be maintained as it is. Since the court below rendered a single sentence on all the remaining convictions in the concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below shall be reversed.

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.

Justices Kim Hwang-sik (Presiding Justice)