대전지방법원 2019.10.02 2018노3778



The defendant's appeal is dismissed.


1. Summary of grounds for appeal;

A. In light of the fact that the victim of mistake of facts was well aware of the monthly revenue of the defendant, the defendant agreed to repay the amount of KRW 10 million at the time when the victim first borrowed the amount of KRW 10 million from the victim five to six months, but the victim demanded repayment at the time when it reaches the agreement and failed immediately repay the amount, and the victim paid a total of KRW 3.7 million to the victim, the court below found the defendant guilty of the facts charged.

B. The sentence imposed by the court below on the defendant (one year of imprisonment with prison labor for four months) is too unreasonable.

2. Determination

A. The circumstances indicated by the lower court’s determination on the assertion of mistake of facts and the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, namely, ① the Defendant asserted to the effect that the Defendant had sufficient means to repay the borrowed money, but the text message (Evidence Nos. 19 through 43) sent by the Defendant to the victim was unable to repay the borrowed money because the funds were not secured, and the contents requesting the deferment of payment were repeated until April 2016. ② The Defendant was out of June 2015 at the time of the police’s statement, and only the interest was paid to the victim, and the interest was not accrued due to the lack of profit from June 2015.

In order to manage the organization by continuing the multi-stage business, there is no time to cover operating expenses due to the occurrence of income.

The victim borrowed money from the victim to the victim was to be repaid if the business is well-grounded.

“The statement to the effect that it was “(2)” (Evidence No. 50,51) and ③ even if the Defendant agreed to repay the principal after five to six months, the Defendant was not fully paid the principal (Evidence No. 125 pages) until January 2018.