2005Do9221 Violation of Act on the aggravated punishment, etc. of specific economic crimes(Fraud)

Justices  Yang Seung-tae (Chief Justice), Koh  Hyun-chul, Kim  Ji-hyung, Jeon  Soo-ahn (Justice in Charge)

Main Issues

 * 1) When the victim who did not claim his credit as he did not know the existence of the credit, whether such an omission is also disposal action of the property (Positive)
 * 2) The case where the publishing managers paid only partial royalty, deceiving the number of sales to the victim by manipulating the table of the books, and the author did not know the existence of the credit, and such an omission is a disposal action of property in fraud.

Summary of Decision

 * 1) Fraud is deceiving others and raising errors of others ending in property or financial gain by inducing disposal action. Here disposal action is a disposal action of property that the deceived went further into action or omission, which incur direct financial damage by free will. Therefore, even if the deceived was in error and did not claim the credit, as he did not know the existence of the credit, such an omission is also a disposal action of the property.
 * 2) The case where the publishing managers paid only partial royalty, deceiving the number of sales to the victim by manipulating the table of the books, the author did not know the existence of the credit, and such an omission is a disposal action of property in fraud.

Reference Provisions

 * 1) Article 347 (1) of the criminal Act
 * 2) Article 347 (1) of the criminal Act


 * Article 347 (1) of the Criminal Act


 * (1) A person who defrauds another, thereby taking property or obtaining pecuniary advantage from another shall be punished by imprisonment for not more than ten years or by a fine not exceeding twenty million won. 


 * Defendant, Appellee: Defendant


 * Plaintiff, Appellant: Public Prosecutor


 * Defense Counsel: Attorney Wook-kyun Kim


 * Judgment of the Court below: Supreme Court Decision 2003Do6570 delivered on March 26, 2004

Disposition
The appeal shall be dismissed, the reason in original court, line 16 of the 18th page, "until about May 2002" shall be corrected to "until about April 2002"

Reasoning
This is to judge the Reasons fore Appeal


 * 1. Concerning the arguments concerning the violation of rule of evidence


 * The Court below was correct in going over the collected evidence and approved the facts judged, and approved facts are as follows,


 * The defendant were not merely following the order of the superior and executing the tasks but were involved in the tasks of paying authors the royalties directly doing the task of paying royalties and drafting the financial documents, and obtaining the approval from Kim Nam-jeon who is co-defendant from the original court. There was a combination of intention with Kim Nam-jeon to execute this crime to realize this crime cooperatively. The defendant and Kim Nam-jeon sent the table of the books taken out of the warehouse, which described only one third of the sale in order to deceive the number of the sale to the victim, and also made the victim believe in the table to be real representation of the book sale. Then, the defendant and Kim Nam-jeon paid the author only one-third amount of royalty and did not pay the rest that is evidently an act of deception. Considering the sequence of those acts and situation, original court approved that the defendant had the intention of fraud, and maintained the judgment of court of first instance, which found the defendant guilty, and original court was correct in collecting evidence, approving and judging the facts. There was no error in violation of rule of evidence.


 * 2. Concerning the arguments concerning the violation of rule of law


 * Fraud is deceiving others and raising errors of others ending in property or financial gain by inducing disposal action. Here, disposal action is disposal action of property that the deceived went further into action or omission, which incur direct financial damage by free will. Therefore, even if the deceived was in error and did not claim the credit, as he did not know the existence of credit, such an omission is also a disposal action of the property.


 * Original court were correct in going over the collected evidence, and following the approved facts that even though the victim did not waive the claim for his royalties which is the remainder of the amount exceeding the royalties which was already paid, or waived the obligation Gana publishing company, the victim ended in not claiming this credit because he was in an error of not knowing the existence of the credit. Hence, original court was correct in judging that this is a disposal action by omission, therefore, there is no error in matters of law.


 * 3. Conclusion


 * Therefore, the appeal shall be dismissed, we are correcting the evident factual error in the original judgment, and it is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Source

 * Supreme Court Decision 2005Do9221 Delivered on July 12, 2007, Supreme Court Library of Korea

2005도9221