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| TITLE | Supreme Court en banc Decision 2016Do13362 Decided February 16, 2017 【Violation of the Special Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)(Name of Ancillary Offense: Fraud); Fraud; Forgery of Private Document; Exercise of Forged Private Document; Misrepresentation in Original Authentic Deed; Exercise of Misrepresented Original Authentic Deed; Embezzlement】 [full Text] |
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[1] In the event one who has been defrauded failed to perceive the meaning or content of a dispositive act, yet the commission or omission by the defrauded is deemed to be a property-dispositive act directly giving rise to property loss, and the defrauded knowingly made such a commission or omission, whether dispositive intent corresponding to the dispositive act in fraud is recognized (affirmative) [2] In the event that, as a result of a mistake on the part of the defrauded due to the perpetrator’s deception, the defrauded signed or sealed an instrument giving rise to an effect different from what the defrauded had in mind, thereby incurring property loss flowing from the instrument, whether the act of the defrauded constitutes dispositive act in fraud (affirmative) In such context, in the event the defrauded failed to perceive the consequences of a disposition, namely, the specific content and legal effect of a document, yet was aware of his/her act of signing or sealing the instrument, whether the dispositive intent of the defrauded is recognized (affirmative) [3] In the case where the Defendant, etc. were indicted on charges of violation of the Special Act on the Aggravated Punishment, etc. of Specific Economic Crimes (fraud) and fraud on the ground that they acquired pecuniary gain by: (a) having Victim A, etc., the owner and seller of the land in question, sign and seal a mortgage contract, etc. by misrepresenting them as documents necessary for land transaction permit, etc.; (b) receiving a certificate of a personal seal impression from Victim A, etc.; and (c) taking out a loan using the same to establish a mortgage on the land owned by A, etc. for B, etc. as the mortgagee, with the Defendant as the mortgagor, the case holding that: (a) the act by A, etc. constitutes dispositive act in fraud and the dispositive intent of A, etc. is recognized; (b) nevertheless, the lower court determined that there was no dispositive act by A, etc. for the sole reason that A, etc. did not have the intent to establish a mortgage, etc. on the land they owned; and (c) in so doing, it erred by misapprehending the pertinent legal doctrine |
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