What is fraud?
Fraud is the crime of deceiving someone to take property or obtain an unlawful financial benefit, and it is also established when such a benefit is conferred on a third party. Because this crime exists to protect an individual's property, it is not established by the mere fact of deception, nor does it apply where an interest other than property has been infringed. These rules are set out in Article 347 of the Korean Criminal Act and Article 246 of the Japanese Penal Code.
Elements of Fraud
For fraud to be established, the elements of deceptive conduct, a disposing act, the victim's financial loss, intent, and the intent of unlawful appropriation must all be satisfied.
The first element of fraud is deceptive conduct that misleads a person into a mistaken belief. This includes active conduct, passive conduct, explicit conduct, and implicit conduct, and it need not be a false statement about an essential part of a juristic act. In other words, the position of the Supreme Court is that it is enough for the false statement to concern a fact that forms the basis for the judgment leading the victim to make the financial disposition the offender intends.
Once property is handed over as a result of the deception, the infringement of the victim's property is established by that fact alone. There are various views on whether financial loss is required, but according to case law, financial loss is not necessarily required. That is, even if substantial consideration was paid in exchange for the property handed over, or even if there is no loss to the victim's overall assets, fraud may still be established.
The intent of unlawful appropriation means the intent to treat another person's property as one's own. In fraud, intent refers to the intention to treat another person's property as one's own.
Fraud Suspect
If you become a suspect under investigation for fraud, your initial response is extremely important. Many people are accused of fraud after borrowing money and failing to repay it. However, if there was no fraudulent intent, you should not face criminal punishment for what is merely a default on a debt. Even so, if you make unfavorable statements during the investigation or trial, you may actually become entangled in a criminal case and be punished. For this reason, in such situations it is important to respond proactively with the help of an attorney.
First, when you are being investigated as a fraud suspect, you should prepare evidence that is favorable to you. For example, if you borrowed money and could not repay it, presenting evidence that you made efforts to repay the borrowed money can prove that there was no fraudulent intent. You should also submit records of conversations with the creditor, a repayment plan, financial transaction records, and the like to clarify your position. Through this, you can establish that the matter is merely a default on a debt and avoid criminal punishment.
It is also important to determine the direction of your statements before the investigative authorities through consultation with an attorney, and to avoid making unfavorable statements during the investigation. Preparing in advance with an attorney's assistance is highly advantageous from the suspect's standpoint. An attorney protects the suspect's rights and helps them respond strategically throughout the investigation and trial.
Fraud Victim
As a fraud victim, thorough preparation is necessary to protect your rights and ensure that the perpetrator is punished. Economic crimes such as fraud are easily met with a prosecutor's decision not to indict due to insufficient evidence, so you must be careful from the moment you draft your criminal complaint.
First, you must gather all evidence that can prove the harm you suffered. This includes every record of communication with the perpetrator, such as contracts, emails, text messages, and audio recordings. Such evidence is essential to proving that the perpetrator defrauded you of property through deceptive conduct.
When drafting your criminal complaint, you must describe the facts of the harm in a specific and consistent manner. If you draft the complaint with an attorney's help, using legal terminology and reasoning, the police and prosecutor can understand the case clearly and investigate more proactively. The complaint should specifically state the circumstances of the harm, the amount of the loss, and the perpetrator's deceptive conduct, with supporting evidence attached.
In addition, during the police and prosecutorial investigation, you should avoid making unfavorable statements and assert only favorable statements in a logical and consistent way. By preparing for the investigation with an attorney's assistance and attending the investigation together with your attorney, you can enhance the credibility and consistency of your statements.
A fraud victim should develop a strategy through consultation with an attorney and prepare thoroughly, from gathering evidence to drafting the criminal complaint. In this way, you can have the perpetrator punished and recover the financial harm you suffered. An attorney provides legal advice and helps the victim secure a favorable position in the criminal case.
Criminal Complaint and Civil Lawsuit for Fraud
If you have become a fraud victim, it is advisable to proceed with a criminal complaint. To file a criminal complaint, you must draft a complaint, and this complaint must accurately state the personal details of both the complainant and the person being accused. If you do not know the accused person's gender, physical features, or appearance, it is best to describe them as specifically as possible. You should also clearly state the criminal facts and the reasons for them, and attach relevant evidence that can prove your claims.
Fraud is conduct aimed at obtaining a financial benefit by deceiving another person, and it is recognized as a crime only when deceptive conduct, the intent of unlawful appropriation, and a disposing act regarding property are all satisfied. In other words, fraud is established only where the victim has suffered a financial loss, and evidence capable of proving that fact is required.
Beyond a criminal complaint for fraud, it is also advisable to pursue a civil lawsuit at the same time. A criminal proceeding can punish the offender, but to recover the financial loss the victim suffered, you must obtain relief through a civil lawsuit. Proceeding with a civil lawsuit after the criminal complaint can be more advantageous.
Therefore, if you are considering a criminal complaint for fraud, it is important to keep these points in mind when drafting your complaint and to follow the relevant legal procedures.
