A. The lower court found the Defendant guilty of the instant facts charged, even though the Defendant had no intent to obtain fraud, due to the aggravation of the financial situation of the company that the Defendant operated by mistake of facts, and the Defendant could not pay transport charges to the victims from January 2018. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment

B. The sentence imposed by the lower court (eight months of imprisonment) is too unreasonable.

2. Determination

A. Comprehensively taking account of the following circumstances which can be recognized by the court below's duly adopted and investigated evidence regarding the assertion of mistake of facts, the defendant could have predicted or recognized the circumstance that the defendant could not pay the victims of the crime at least dolusium at the time of the crime of this case. Therefore, the judgment below which convicted the defendant of the facts charged of this case shall not be deemed to have erred by misapprehending the facts.

Therefore, the defendant's above assertion is without merit.

① Upon receipt of a request for cargo transport from a shipper, J Co., Ltd. (hereinafter referred to as the “J”) operated by the Defendant (hereinafter referred to as the “cargo”) shall instruct the operators of cargo vehicles to transport the cargo, and shall pay the remainder of the J to the operators of cargo vehicles with the payment of transportation fees from the shippers, on condition that the payment period has been 45 days after the last day of the relevant month by the end of 45 days from the last day of the relevant month.

② However, around 2014, J began to lose its management status from around 2014 due to the Plaintiff’s failure to receive the freight of KRW 114 million from M, and thereafter, the management status has deteriorated. Since then, the Defendant received an apartment loan (N apartmentO in Busan-gu) owned by the Defendant from financial institutions as collateral and paid freight drivers to freight drivers.