사기
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 1,500,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. Determination at the time of the establishment of a crime of fraud is based on the determination at the time of the act of fraud. As such, if a borrower has an intent and ability to repay money at the time of lending money in a consumption lending transaction, even if he/she fails to repay money thereafter, this is merely a non-performance of civil liability, and criminal fraud is not established (Supreme Court Decision 2012Do14516 Decided April 28, 2016). The Defendant, who borrowed money from a damaged party, owned active property of at least KRW 50 million around October 13, 2015, while the property was limited to KRW 20 million. Since the borrower used the borrowed money as construction price in conformity with the purpose of lending KRW 15 million within several days, it does not constitute a crime of fraud as it has the intent and ability to repay at the time of the next use.
B. The sentence of the lower court (an amount of KRW 3,00,000) that is unfair in sentencing is too unreasonable.
2. Judgment on the misapprehension of legal principles
A. In full view of the following circumstances admitted by the lower court and the lower court’s duly admitted and investigated evidence, it is sufficiently recognized that the Defendant, at the time of borrowing KRW 15 million from the injured party on October 13, 2015, by deceiving the injured party, even though he did not have the intent and ability to repay the borrowed amount until May 5, 2016, at the time of the borrowing of KRW 15 million from the injured party.
① On October 13, 2015, the date of borrowing, the Defendant is recognized to have owned the cancellation refund money on the following insurance contracts: (a) Daejeon Seo-gu I Apartment-gu, Daejeon-gu, equivalent to KRW 194 million or KRW 220 million, KRW 6740,00,00, KRW 1,000, KRW 283 square meters, KRW 283 square meters, KRW 283 square meters, KRW 9.91 square meters, KRW 4,000,000, and KRW 6740,000, KRW 1,000; and (b) the first time, KRW 283,00
However, in the case of the above site and detached house, there is not only a lack of material to regard the value of the above site and detached house as KRW 180 million or KRW 190 million, as the defendant asserts (only the defendant submitted a written confirmation of market price of a certified broker).