부동산 매수인의 임대차보증금반환채무 인수의무와 사기죄 - 대법원 2023. 6. 29. 선고 2022도16422 판결 -

Precedent determines whether or not there is deception in the case of fraud, focusing on the duty of notification. However, what the duty of notification contains only points to an important factor or the fact that is the basis for judgment in the decision of the transaction. Even if the possibility of other acts on which the principle of good faith is based is added, it is not possible to define the scope of the content to be notified or clearly explain the basis for creating such an obligation. It is appropriate to see the principle of good faith as merely limiting principles or providing guidance on the interpretation of specific details in the exercise of rights or performance of obligations pursuant to established legal relationships. And it is not appropriate to use it as the basis for imposing certain obligations from the stage of establishment of legal relationships. On the other hand, since the good faith principle as the basis for the occurrence of the obligation to notify does not include the duty of protection or safety, it cannot be directly regarded as a duty of guarantor. Parties engaging in a transaction presuppose or understand the effect of the transaction, the transfer of rights and fulfillment of obligations resulting therefrom. This premise or understanding should naturally be regarded as binding in relation to a transaction as a matter that has already been agreed upon during the transaction process. If the validity of the transaction is denied or there is a risk that the rights to be acquired through the transaction will not be acquired, it is obligated to notify the other party of the matters related to it as lacking the prerequisites for the agreement. Specifically, there is an obligation to notify matters related to the lack of intention or ability to perform, the case where the parties have targeted an object for which they cannot acquire rights, the inability to achieve the actual purpose of the contract, and other matters related to the incorporation into the contract contents according to the overall nature and purpose of the contract, etc. However, there is no obligation to notify matters concerning the price of the transaction or matters that do not affect the achievement of the purpose of the transaction.