A. As to the facts of the crime No. 4 in the judgment of the court below, the victim was aware of all the circumstances that the defendant's financial shortage at the time of lending KRW 80 million to the defendant and that it is impossible to transfer the FM of this case, and therefore, there was no deception of the defendant's ability to repay to the victim and there was no intention to commit fraud.

B. The sentence sentenced by the lower court to the Defendant (one year of imprisonment) is too unreasonable.

2. Determination

A. On January 19, 2012, the Defendant’s summary of the public prosecutor’s office stated that “Around January 19, 2012, the Defendant borrowed KRW 80 million to the victim in the D market located in Nam-gu Incheon Metropolitan City, Nam-gu, Incheon. In the event that interest on the principal amount of KRW 250 million, including the existing debt, is overdue for at least three months, the Defendant would transfer the F-based market operated by the internal director.”

However, fact is that the defendant was operated.

The F Account Sales was a state-owned situation in which the victim cannot transfer the F Account Sales to the victim even if the victim is unable to repay the money borrowed from the victim because it was not authorized to dispose of it.

The defendant deceivings the victim by the above method, and he obtained 80 million won from the victim and acquired it by fraud.

2) In order to establish a crime of fraud, a crime of fraud is established even in cases where there is negligence on the part of the person who was the victim during the cause of deception and the other party’s mistake, delivery of property, or contribution to property benefits.

Meanwhile, insofar as the criminal intent of defraudation, which is a subjective constituent element of fraud, is not a confession of the defendant, it shall be determined by taking into account 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, and the criminal intent is also sufficient, not a conclusive intention, but a willful negligence (see, e.g., Supreme Court Decision 2008Do1697, Jun. 23, 2009). In light of the above legal doctrine, the criminal intent is sufficient.