Open Decision Ledger · Criminal & investigative procedure
Proving intent to defraud and finding dolus eventualis in a Ponzi investment scheme
Supreme Court, Nov. 6, 2025, 2024Do6215 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 사기
Official text on the National Law Information Center
Question
When a recruiter for a foreign investment company denies intent to defraud, must the subjective element of the offence be proven through indirect or circumstantial facts, and how is it decided whether the defendant tolerated the risk that the investment principal and high returns could not be paid?
Holding
It must. The subjective element is known only from indirect or circumstantial facts substantially related to the intent, identified on ordinary experience and a rational reading of how the facts connect. Dolus eventualis requires both awareness that the crime may occur and an inner will tolerating that risk, judged from the outward form of conduct and its circumstances without depending on the actor's statement. On this record there was ample basis to find that the defendant, who ran the Daejeon office, kept some 50 sub-investors, ran their money by rolling repayments and could well have known the company had stopped deposits and withdrawals, took KRW 46.07 million from the victim with at least that intent, and his acquittal was reversed.
Points at issue, verbatim
피고인이 편취의 범의를 부인하는 경우, 이를 증명하는 방법
Unofficial English translation
The method of proof where the defendant denies the intent to obtain by fraud
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 대전지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daejeon District Court.
Form of the test
Existing test applied Read from the decision
피고인은 ○○캐피탈의 사업과 관련하여 투자원금의 반환 및 고율의 수익금 지급이 불가능하다는 사실을 미필적으로나마 인식하면서도 공소사실 기재와 같이 피해자를 기망하여 피해자로부터 투자금을 편취하였다고 볼 여지가 충분하다.
Unofficial English translation
There is sufficient room to regard the defendant as having, while recognizing even as dolus eventualis (conditional intent) the fact that, in connection with the business of ○○ Capital, the return of the investment principal and the payment of high-rate returns were impossible, nevertheless deceived the victim as stated in the facts charged and obtained the investment funds from the victim by fraud.
Factors
- 피고인이 편취의 범의를 부인하는 경우, 이를 증명하는 방법
- 미필적 고의의 내용 및 행위자에게 미필적 고의가 있었는지 판단하는 방법
Unofficial English translation
• The method of proof where the defendant denies the intent to obtain by fraud
• The content of dolus eventualis (conditional intent) and the method of determining whether the actor had dolus eventualis (conditional intent)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2006. 2. 23. 선고 2005도8645 판결(공2006상, 537), 대법원 2007. 10. 11. 선고 2007도6012 판결
Unofficial English translation
Supreme Court Decision 2005Do8645 decided February 23, 2006 (Gong 2006 Sang, 537), Supreme Court Decision 2007Do6012 decided October 11, 2007
Decisions referred to
[1] 대법원 2006. 2. 23. 선고 2005도8645 판결(공2006상, 537), 대법원 2007. 10. 11. 선고 2007도6012 판결 / [2] 대법원 2004. 5. 14. 선고 2004도74 판결(공2004하, 1101), 대법원 2017. 1. 12. 선고 2016도15470 판결(공2017상, 427), 대법원 2024. 4. 4. 선고2021도15080 판결(공2024상, 751)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If a lower recruiter held a written assurance from head office that the stop on withdrawals was temporary, would the same circumstances still show that he tolerated the risk that the principal could not be returned?
The remand judgment of the Daejeon District Court, once it finds or rejects the intent to defraud on a fuller record, will show how this standard is applied. A decision revising the content of dolus eventualis set out in Supreme Court Decision 2004Do74 or Supreme Court Decision 2016Do15470, or an amendment to Article 347 of the Criminal Act, would require this entry to be read again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Circumstances weighed”
The primary reading frames the court's method as applying the test to the facts, while the independent reading frames it as a holistic consideration of the recruiter's role, fund handling and solicitation. Both describe the same reasoning, so the difference lies in labelling the form of the standard.
행위자에게 미필적 고의가 있었는지 판단하는 방법Axis 8 (Open question and revisit condition): Primary “If a lower recruiter held a written assurance from head office that the stop on withdrawals was temporary, would the same circumstances still show that he tolerated the risk that the principal could not be returned?” vs Independent “Will further examination on remand establish the defendant's fraudulent intent beyond reasonable doubt?”
The primary reading asks whether a written head-office assurance of temporary suspension would still show tolerance of the risk. The independent reading asks whether the remand will prove intent beyond reasonable doubt.
피고인이 편취의 범의를 부인하는 경우, 이를 증명하는 방법Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daejeon District Court, sitting on appeal, in its judgment of 3 April 2024 (2023No366), kept the first-instance acquittal. It held that it was not proved beyond reasonable doubt that the defendant knew OO Capital had no real profit-making structure and paid returns by rolling repayments, or that he knew he had no intention or ability to return the investment principal and profits. The charge records that KRW 24.3 million and KRW 21.77 million were paid into his son's bank account in January 2019.
Supreme Court standard: The Supreme Court held that this judgment violated the rules of logic and experience and so went beyond the limits of free evaluation, misapprehended the law on the fraudulent representation and the intent to defraud, and separately failed to carry out the examination needed, thereby affecting the result. Reading the facts found below against that law, it held there was ample basis to find the defendant recognised, at least with dolus eventualis, that the principal and high returns could not be paid: from his position, role, period of recruitment and handling of funds he could well have known the company was a multi-level Ponzi scheme, he could not properly explain how the principal would be returned after ten months, what head office supplied amounted only to promotional or interview material, he did not even properly make an effort to verify the high returns, and although he could well have known that the website was down and withdrawals had stopped since mid-December 2018, and that the victim would not have paid had they known the money would refund earlier investors in return for Bitcoin they held that is not tradable on an exchange, he disclosed neither, said repayment and high returns were possible, and took the money. On the unanimous opinion of the participating Justices it reversed the judgment and remanded the case to the Daejeon District Court.
Distinguishing conditions
- A recruiter whose position, role and handling of funds do not show that the company was a sham of that kind, since the Court inferred knowledge from those circumstances.
- A case in which the stop on deposits and withdrawals from mid-December 2018 was not something the defendant could have readily known.
- A case in which the defendant properly tried to verify that the company earned high returns through Bitcoin futures trading and could explain how the principal would be returned after ten months.
Record verification notes
Before relying on this decision, collect what shows the defendant's position and role, the period of recruitment, the number of sub-investors and the way the funds were run, since the Court inferred the sham nature of the scheme from those. Set what head office supplied against what the defendant did to verify the returns, and put the state of the company's website from mid-December 2018 against the date the victim transferred the money and what the defendant said at the time. The Court faulted the judgment on general grounds, exceeding the limits of free evaluation, misapprehending the law on fraudulent representation and intent to defraud, and separately failing to carry out the necessary examination, so the file must show what was examined below.
From the official text
Points at issue
[1] 피고인이 편취의 범의를 부인하는 경우, 이를 증명하는 방법 [2] 미필적 고의의 내용 및 행위자에게 미필적 고의가 있었는지 판단하는 방법
Unofficial English translation
[1] The method of proof where the defendant denies the intent to obtain by fraud [2] The content of dolus eventualis (conditional intent) and the method of determining whether the actor had dolus eventualis (conditional intent)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 대전지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Daejeon District Court.
Provisions referred to
[1] 형법 제13조, 제347조, 형사소송법 제308조 / [2] 형법 제13조
Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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