A. In fact, the Defendant had the intent or ability to pay the material price to the victim at the time of the instant case, but had no intention to commit fraud as it was impossible for the Defendant to pay the material price that was not intended due to business failure.

Nevertheless, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous by misunderstanding facts and affecting the conclusion of the judgment.

B. The sentence of the lower court’s improper sentencing (eight months of imprisonment) is too unreasonable.

2. Determination

A. The lower court, based on the evidence duly admitted and examined by the lower court, found the following circumstances, namely, ① the Defendant, at the time of carrying out construction works as indicated in the lower judgment’s judgment in the self police investigation on October 30, 2017 (hereinafter “instant construction works”), was liable for KRW 40 million, including the overdue wage of KRW 20 million and bank loans of KRW 80 million, except for the material cost to be paid to the victim at the time of carrying out the construction works as indicated in the lower judgment’s judgment (hereinafter “instant construction”).

(2) On September 5, 2015, the time when the Defendant received materials from the injured party due to the financial shortage, the Defendant expressed his/her intent to waive the instant construction work to L Co., Ltd. (hereinafter “L”), a contracting party to the instant construction project, and prepared a written waiver of the construction work (Evidence No. 49 page of the evidence record, and the Defendant, on October 30, 2017, paid the material price to the injured party from L in accordance with the Defendant’s waiver of the instant construction work (Evidence No. 49 page of the evidence record, and the Defendant, on October 30, 2017).

However, each written waiver of the construction work states that the defendant bears the expenses incurred before the waiver of the construction work, and M, the representative director of L, has the obligation to pay the material cost to the victim in the currency with the police investigator.

In light of the fact that the defendant, in the prosecutorial investigation on December 26, 2017, was the person responsible for paying the cost of materials to the victim (Evidence No. 266 pages), etc., the defendant, notwithstanding the waiver of the construction of this case, shall be the defendant.