A. As to the mistake of facts or misapprehension of legal principles, the Defendant used goods supplied by the victim FF corporation and K, a supplier of construction materials, but R operated by the Defendant was sub-subcontracted by CF corporation for the construction of electricity, fire-fighting, and telecommunications facilities among the construction of the E University Life Center, and thus, the Defendant received the construction cost from C and was in the position of paying the victims the price of goods

Therefore, while preparing a contract for the supply (trade) with victims, the defendant does not have any fact of deceiving victims with regard to important matters, and there is no intention to commit the crime of defraudation by the defendant.

Nevertheless, the judgment of the court below that found this portion guilty is erroneous by misunderstanding the facts and affecting the conclusion of the judgment.

B. The lower court’s sentence of unreasonable sentencing (two years of imprisonment, three years of suspended execution, and 120 hours of community service) is too unreasonable.

2. Determination

A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud in determining the assertion of mistake of facts, should be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of transaction before and after the crime unless the Defendant confessions. The intent of the crime is not a conclusive intention, but a willful negligence is sufficient

(see, e.g., Supreme Court Decisions 2007Do10416, Feb. 28, 2008; 2007Do8726, Aug. 21, 2008). Moreover, as a subjective element of constituent elements of crime, dolusent intent refers to cases where the possibility of occurrence of crime is expressed as unclear and it is acceptable.

According to the evidence duly adopted and examined by the lower court, the Defendant concluded a subcontract with C on the instant construction project and received the C’s employee reduction, and the said employee reduction was not used in relation to the construction cost, such as purchase of materials, and without C’s approval.