A. In order to keep the instant money as deposit for one month, instead of borrowing it under the pretext of returning it, the victim obtained permission from the victim to return it after using it for a period of six months.

Therefore, there was no perception of the victim, and there was also an intention or ability to repay.

B. The sentence of the judgment of the court below on unreasonable sentencing (two months of imprisonment, two years of suspended execution, and eight hours of community service) is too unreasonable.

2. Determination

A. A. (1) The determination of the assertion of mistake of facts is inevitable in determining the crime of fraud, unless the defendant makes a confession, by taking into account the objective circumstances such as the defendant's financial power, environment, details of the crime, and the process of performing transactions before and after the crime (see, e.g., Supreme Court Decision 95Do424, Apr. 25, 1995). In a case where, in borrowing money from a third party, the other party notified the fact that the other party would have failed to comply with the purpose of the borrowed money or the method of raising funds to be repaid if he/she did not respond to the true notification, the crime of fraud is established, and in such a case, the conclusion is not different solely on the ground that the security against the borrowed money was provided.

(2) According to the evidence duly examined and adopted by the court below (see Supreme Court Decision 2003Do5382, Sept. 15, 2005). (2), the Defendant borrowed the instant money from the victim who believed it on June 11, 2012, (2) the Defendant established a capital amount of KRW 500 million on June 12, 201, and then withdrawn the establishment fund and used it most for business expenses, and (3) the instant money is borrowed from the victim on May 2012.