A. In fact, the Defendant: (a) was actually performing construction works for the victim H, AA, and AB; and (b) was paid the construction cost according to his or her flag; (c) thus, the Defendant did not have any intent or ability to cause the construction work

shall not be deemed to exist.

B. The sentence of the lower court’s unfair sentencing (two years of imprisonment) is too unreasonable.

2. Determination

A. The following circumstances revealed by the evidence duly adopted and investigated by the lower court against the victim H based on the evidence revealed by the lower court, namely, ① the Defendant had already received new construction cost prior to the conclusion of the instant construction contract with the victim on August 17, 2016, and had been prevented from returning so-called materials cost or human wages for other construction contracts. ② The Defendant closed the instant construction contract on August 29, 2016. The Defendant concluded the instant construction contract immediately before the closure. ③ The Defendant, following the closure of the contract, led to the Defendant’s confession of all crimes, such as the crime of defraudation, regarding the case for which the Defendant concluded the construction contract on August 14 and August 20, 2016 and received the construction cost on August 20, 2016; ④ The Defendant had not received the Defendant’s total amount of KRW 50,000,000 from August 18, 2016 to October 20, 2016.

In full view of the fact that the Defendant appears to have not used the construction cost paid by the injured party as the construction cost of this case, the construction cost is irrelevant to the construction work of this case, even though the Defendant was in a situation in which the entire construction cost of this case could not be disbursed into the construction work of this case.