However, there was no intention or ability to repay the debt properly even if there was no particular property, and even if the debt was borrowed money from the victim.

Nevertheless, on November 20, 2010, the Defendant, by deceiving the victim, received KRW 10 million from the victim's house parking lot located in Gwangjin-gu Seoul Special Metropolitan City around November 20, 201, and acquired KRW 10 million from the new bank account in the name of the Defendant on the same day.

2. The defendant asserts that he borrowed KRW 20 million from the victim to the facts charged of this case, but did not repay them due to the aggravation of economic conditions, and that he had the intent or ability to repay them at the time of the above borrowing act.

However, unless the defendant does not make a confession, the intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, is to be determined by comprehensively taking account of the objective circumstances such as the defendant's financial power, environment, details of the crime, and the process of performing transaction before and after the crime (see, e.g., Supreme Court Decision 2004Do8651, Mar. 24, 2005). Whether the crime of fraud is established by the defraudation of the borrowed money, shall be determined by whether the defendant had the intention to acquire the money from the victim under the pretext of the borrowed money by making a false statement as if he/she did not have the intent or ability to repay the borrowed money to the victim as at the time of the act of borrowing the borrowed money, even though he/she did not have the intent or ability

Supreme Court Decision 2002Do5265 Delivered on January 24, 2003, Supreme Court Decision 2002Do5265 Delivered on July 24, 199.