The construction project of J underground parking lots and memorials, which was conducted by the defendant of mistake of facts, was conducted at the immediately preceding stage of concluding a memorandum of understanding with the J, and the defendant invested the level of KRW 200 million in this project.

In the repayment of the investment amount, the Defendant first repaid 130 million won to T with the consent of the victim, repaid 19 million won to the victim, and paid 19 million won to the victim, and the shares of H Co., Ltd. agreed to be secured by the investment amount was actually owned.

In light of this, the judgment of the court below which convicted the defendant is erroneous in the misconception of facts, although the defendant did not have the intention of defraudation and had the intent and ability to repay the investment money.

The sentencing of the lower court (six months of imprisonment, two years of suspended execution) is too unreasonable.

The intent of the crime of defraudation, which is a subjective constituent element of fraud of the legal doctrine related to the determination of mistake of facts, shall be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, details of the crime, and the process of transaction before and after the crime unless the defendant confessions. The criminal intent is sufficient not to be a conclusive intention but to do so.

(See Supreme Court Decision 2007Do10416 Decided February 28, 2008 (see, e.g., Supreme Court Decision 2007Do10416, Feb. 28, 2008). In relation to co-offenders who are jointly engaged in a crime, the conspiracy does not require any legal penalty, but is only a combination of two or more persons to realize a crime by jointly processing a crime. Thus, if a combination of intent is made in order or impliedly, the conspiracy relationship is established, and even if the co-principal of fraud was unaware of the method of deception, the conspiracy

(Supreme Court Decision 97Do1706 Decided September 12, 1997, and Supreme Court Decision 2013Do5080 Decided August 23, 2013). The above determination is made.