사기
The judgment of the court below is reversed.
Defendant shall be punished by a fine of five million won.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. In order to jointly use shares for investment and transfer expenses, etc., the Defendant merely received money from the victim, and does not deceiving the victim without intent or ability to repay, even if he/she borrowed money from the victim, such as as stated in the facts charged, by deceiving the victim.
Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous and adversely affected by the judgment.
B. The sentence imposed by the court below on the defendant (six months of imprisonment and one year of suspended execution) is too unreasonable.
2. Determination
A. 1) The criminal intent of defraudation, which is a subjective constituent element of fraud, is to be determined by comprehensively taking into account the following circumstances, as long as the defendant does not make a confession, such as the defendant's financial history, environment, details of the crime, and the process of performing transactions before and after the crime. The criminal intent is sufficient not to have a conclusive intention but to have dolusent intent, and in the civil monetary lending relationship, the criminal intent of defraudation can not be acknowledged immediately with the default of obligation. However, in the event the defendant borrows the money by pretending that he/she would repay the money even though he/she did not have an intent to repay or have no ability to repay within the due date of repayment as he/she has promised to do so, the criminal intent of defraudation may be recognized (see Supreme Court Decision 2010Do18139, May 13, 201). i.e., from the investigation agency to the court below to the court below, he/she starts to lend the money to the defendant in return to the court.
Even after that, the defendant shall complete all of the monthly payments.
The money has been lent in the last time, and the repayment has not been made until now.