A. The lower court found the Defendant guilty of the instant facts charged, which erred by misapprehending the legal principles and mistake of facts, and by misapprehending the legal principles, the Defendant borrowed money with gambling funds, and the victim was aware of such circumstances, and had the intent and ability to repay to the Defendant at the time, and thus, did not deceiving the victim, thereby adversely affecting the conclusion of the judgment.

B. The sentence of the lower court (an amount of KRW 10 million) that is unfair in sentencing is too unreasonable.

2. Determination on the misapprehension of facts and misapprehension of legal principles

A. As to the assertion regarding gambling funds, even though the person who provided benefits cannot exercise the right to claim return to the beneficiary because it constitutes an illegal cause under Article 746 of the Civil Act, if the beneficiary provided property equivalent to the benefit that is an illegal cause through deception (see Supreme Court Decision 95Do707 delivered on September 15, 1995). Thus, even if the beneficiary borrowed money from the injured party for the purpose of using it as gambling funds, it does not affect the establishment of fraud (see Supreme Court Decisions 2004Do677 delivered on May 14, 2004; 2006Do6795 delivered on November 23, 206). As to this case, it takes money from the injured party for the purpose of using it as gambling funds as the defendant's assertion, as well as the victim was also aware of such circumstances.

Even if the court below properly states, as long as the defendant borrows money without the intention or ability to pay the money, the crime of fraud is established against the defendant.

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

B. As to the Defendant’s intent and ability to repay, the lower court was based on the following circumstances acknowledged by the evidence in its holding, that is, at the time of the Defendant’s lending of money from the damaged party, the Defendant already received approximately KRW 100 million loans from the damaged party and repaid most of them in installments.