A. The defendant and the victim of the mistake of facts found that they were in the same business relationship, and although the defendant had the nature of the investment money received from the victim in the same business relationship, the court of first instance recognized the money as a loan.

In addition, at the time of receiving money from the victim, the Defendant had the right to claim KRW 200 million against K and had the intent and ability to pay the money received from the Defendant.

Therefore, the judgment of the first instance that found the Defendant guilty of the facts charged of this case is erroneous and adversely affecting the conclusion of the judgment.

B. The first instance sentence of unfair sentencing (six months of imprisonment) is too unreasonable.

2. Determination

A. Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and investigated in the first instance trial as to the assertion of mistake of facts, it is reasonable to deem that the Defendant received money from the victim as the borrowed money as stated in the judgment of the first instance court. At the time, the Defendant did not have the ability to prepare an insurance policy of KRW 1 billion for the victim, and even if the Defendant borrowed money from the victim, it can be sufficiently recognized that the Defendant did not have the ability or intent to perform

Therefore, the defendant's assertion of mistake cannot be accepted.

① The victim, as consistent from the investigative agency to the court of first instance, consistently “E established by the victim,” entered into a motor vehicle purchase contract with L Company, which requires a guarantee of payment of KRW 1 billion to implement the terms and conditions of the contract.

However, the Defendant intended to assist the victim to obtain the above insurance policy of KRW 1 billion, and agreed to the effect that he/she would repay the insurance policy immediately because he/she has borrowed money from time to time to time to make a business well.

Accordingly, the victim is the defendant who has assisted the victim to work.