A. The defendant of mistake of facts was unable to repay the loan of this case to the victim because his own projects and spouse's projects are difficult, and did not have the intent or ability to repay the loan of this case from the victim at the time of borrowing. Thus, the defendant did not have the intention to acquire the loan of this case.

B. The punishment of eight months of imprisonment imposed by the court below on the defendant is too unreasonable.

2. Determination

A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud to determine the mistake of facts, is to be determined by comprehensively taking account of the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of transaction before and after the crime unless the Defendant confessions. The criminal intent is sufficient not to be a conclusive intention but to be dolusent intention

(2) In light of the following circumstances, the court below acknowledged that the Defendant had paid interest on the loan of this case to the victim until September 30, 2008, although it was acknowledged that the Defendant had paid the interest on the loan of this case to the victim before the Defendant committed each act of this case (see, e.g., Supreme Court Decision 2008Do1652, May 8, 2008). The record reveals that the Defendant had been unable to pay the loan of this case due to the Defendant’s debt amounting to approximately KRW 30 million including the loan of this case at the time when the Defendant borrowed the loan of this case from the victim (see, e.g., the first police interrogation protocol, etc.). ② The Defendant did not have paid the principal of the loan of this case to the victim, and around September 30, 2008, the due date for repayment of the loan of this case was due for the loan of this case from the victim and the Defendant’s interest on the loan of this case.