사기
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
However, for a period of two years from the date this judgment becomes final and conclusive.
1. Grounds for appeal (the factual error and the unreasonable sentencing)
A. The Defendant did not deceiving the victim because he had the intention to repay and had the ability to repay.
B. The lower court’s sentencing on the Defendant is too unreasonable.
2. Judgment on the assertion of mistake of facts
A. Comprehensively taking account of the evidence duly adopted and examined by the lower court regarding Nos. 2 and 3 of the Attached Table Nos. 2 and 3 of the facts charged in the instant case, the amount that the Defendant borrowed from the complainant by March 8, 2009 was the aggregate of 619,000, while the Defendant did not have any other evidence to acknowledge the Defendant’s ability to repay the principal and interest up to the date of December 8, 2008. On the other hand, in light of the above circumstances, it is difficult to deem that the Defendant deceptiond the victim, and there was no other evidence to acknowledge the Defendant’s ability to repay. < Amended by Presidential Decree No. 28070, Feb. 9, 2009; Presidential Decree No. 21200, Mar. 8, 2009; Presidential Decree No. 22000, Mar. 1, 2009>
B. In full view of each of the evidence in the facts charged in the instant case regarding Nos. 4 through 32 of the annexed crime list, the Defendant was in bad credit standing, and the existing obligation was transferred to KRW 38 million, and the monthly income was excessive to KRW 100-12 million, the Defendant borrowed money from the victim and was in the name of repayment of the existing obligation and living expenses, and the Defendant claimed that the Defendant intended to receive and pay the insurance proceeds of the same birth. However, since the beneficiary of the insurance proceeds is the same person, it is legally without the authority of the Defendant to receive the insurance proceeds, and the Defendant continued the transaction by borrowing money from the victim and making repayment with borrowed money, and there is no way to ultimately repay it. In light of the fact that it seems that there was no way to do so, the Defendant may not be able to do so.