A. In the instant facts charged by misapprehending the legal principles, the Defendant had the ability to pay the price at the time of receiving raw ginseng from the victim M and was planned to pay the price, and thus, the Defendant is not deemed to have the criminal intent of defraudation.

B. The sentence of the lower court’s improper sentencing (three years and six months of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts or of legal principles, the lower court found the Defendant guilty on the grounds of the following circumstances acknowledged by the evidence duly adopted and investigated.

① Before entering into a contract for the supply of raw ginseng with the victim M, the Defendant already used D Co., Ltd. D as stated in the facts constituting a crime Nos. 1 and 2 as indicated in the judgment below, and omitted the indication of “stock company” in the name of another company.

Embezzlements more than KRW 600 million of the funds owned by the owner, and through breach of trust, it has inflicted property damage equivalent to KRW 100 million on D.

② On September 5, 2014, D entered into a contract with P to supply raw ginseng from September 30, 2014 to December 31, 2014. L succeeded to the said contract from P on November 1, 2014.

At the time of the raw ginseng supply contract between the Defendant and the victim, D received advance payment equivalent to KRW 6.7 billion from L, but D used part of the said advance payment for any purpose other than the purchase of raw ginseng and failed to supply raw ginseng equivalent to KRW 2.6 billion among the raw ginseng supplied to this Do to this end on March 31, 2015, which was changed for any purpose other than the purchase of raw ginseng, and L refused to pay the advance payment.

(3) Even if all tangible assets owned by D as of the year 2014 are disposed of, it is insufficient to purchase raw ginseng to be supplied to L or to return the paid advance payment.