A defendant shall be punished by imprisonment for not less than two years and four months.

A. The judgment of the court below which found the defendant guilty of fraud even though he did not have a criminal intent to acquire by deceit, is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

B. The sentence of the lower court (2 years and 9 months) against the illegal defendant in sentencing is too unreasonable.

2. Determination

A. As long as the defendant does not make a confession, the crime of defraudation, which is a subjective constituent element of fraud, is bound to be determined by comprehensively taking account of the objective circumstances such as the defendant's financial history, environment, details of the crime, and the process of performing transactions before and after the crime. The criminal intent is sufficient not conclusive intention, but dolusent intent, and in the civil monetary lending and lending relationship, it cannot be recognized as the crime of defraudation of the borrowed money immediately with the fact of default. However, if the defendant borrowed the money by pretending as if he would have to repay the money in spite of the fact that he did not have a clear intention or would have an ability to repay the money within the due date of repayment as agreed upon (see Supreme Court Decision 2010Do18139, May 13, 201, etc.). The defendant borrowed money from the victims to the same effect as the grounds of the judgment below, and the court below delayed the sale of the funds in this case to the creditors, etc. 600 million won or more by borrowing it from the above financial institution.