A. It is true that the Defendant, as a misunderstanding of the fact, borrowed KRW 30 million from the injured party, did not receive a delivery under the pretext of investing in the development of the reclaimed land in Seosan at the time, but the Defendant was expected to receive the return of investment and proceeds within 1 to 2 years since he had invested KRW 50 million in the electric housing complex that was already developed by G, and thus, the Defendant was deprived of the injured party or received the delivery without the intention or ability to make a change.

The judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous in the misapprehension of facts.

B. The sentence sentenced by the lower court to the Defendant (the penalty amounting to five million won) is too unreasonable.

2. Determination

A. Comprehensively taking account of the following facts acknowledged by the evidence duly adopted and investigated by the lower court regarding the assertion of mistake of facts, the lower court may recognize the fact that the Defendant obtained KRW 30 million from the injured party without the intent or ability to repay the said amount and acquired it by deception.

Therefore, the judgment of the court below is just, and the defendant's assertion of mistake is without merit.

1) The victim would purchase the land with the money and pay the principal and the profit after one year from the investigative agency to the court of original trial if he/she lends the money to the maximum extent possible.

In other words, a specific and consistent statement is made to the effect that it is trusted and delivered KRW 30 million.

In addition, according to the loan certificate written by the defendant around October 2016, the defendant stated that "the defendant requests the victim related to the purchase and sale of the reclaimed land in Seocho-do on October 2010, and thereafter he/she requests the victim to borrow money on the condition that he/she will pay the remaining interest and the amount of the claim (one year after repayment)." Accordingly, the defendant's statement is consistent with the victim's statement.

2) The Defendant does not lend money from the injured party to invest in real estate development, etc. and does not make personal use.