사기
The defendant shall be innocent.
1. On November 2, 2013, the Defendant sent a text message to the victim C, stating that “When the Defendant lends KRW 40 million to the victim, notarial and interest monthly: drown 2: June 2014, the Defendant sent the text message to the victim, and then sent the message to “I will use it within a short period of time because I would have received money in the 6th month of the loan of the money for the restricted subject-matter. I will return the house to the Defendant. Although the house was sufficiently difficult to borrow money, I would not request the students to lend money to the same effect that I would not request the lending of money.”
However, in fact, the Defendant did not have been repaid the borrowed money, and there was no substantial value due to the establishment of senior mortgage, etc. on the real estate owned by the Defendant, and the additional loan was not possible, and the financial situation has deteriorated, such as the loan equivalent to KRW 1.6 billion and the charge of interest equivalent to KRW 5 million per month. Therefore, even if the Defendant borrowed money from the victim, there was no intent or ability to repay the borrowed money within the agreed period
On November 5, 2013, the Defendant, by deceiving the victim, received KRW 40 million from the victim to the D account, which was the Defendant’s wife on November 5, 2013, and acquired it by fraud.
2. Determination
A. The defendant and his defense counsel asserted that the defendant had intent and ability to repay the money stated in the facts charged at the time of borrowing the money.
B. Whether fraud is established through the defraudation of the key issue of the instant case shall be determined at the time of the borrowing of the money. Since it was impossible to repay the borrowed money due to the change in economic conditions after the borrowing of the money, it cannot be punished as a crime of fraud (Supreme Court Decision 98Do180 delivered on March 10, 1998). The key issue of the instant case is whether the Defendant had the intent to commit fraud at the time of borrowing the said money from C (hereinafter “Appellant”).