Therefore, the defendant did not have the intention to acquire the above shares at that time and had the intent and ability to return the shares to the victim again, but the time has passed due to the personal circumstances of the defendant, resulting in not paying the price for the above shares or returning the ownership.

However, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous in the misunderstanding of facts or by misapprehending of legal principles.

2. Determination

A. Fraud is established by deceiving others, leaving them into mistake, inducing a dispositive act, thereby obtaining property or pecuniary advantage. It must be related to deception, mistake, or property disposal act.

On the other hand, whether a certain act constitutes a deception that causes mistake to others, and whether such deception and property disposal act are related to a person ought to be determined generally and objectively by taking into account the transactional situation, the other party’s knowledge, character, experience, occupation, and other specific circumstances at the time of the act (see, e.g., Supreme Court Decision 2013Do969, Feb. 27, 2014). (b) The evidence duly adopted and examined by the lower court reveals the following facts and circumstances.

① The Defendant was unable for a business operator, who had been operating at the time of receiving the registration for transfer of ownership from the injured party in the course of receiving the instant equity loan by taking the instant equity loan as security, to take account of operating funds, employees’ benefits, etc., and further loans are extended by taking the Defendant’s property, etc. as security.