However, in fact, the Defendant was at least KRW 2 billion due to the failure of business at the time, and even if the Defendant borrowed the above money from the victim, it was impossible to prevent the auction due to the failure to pay the remaining money, so there was no intention or ability to repay the borrowed money to the victim.

Nevertheless, on March 2, 2012, the Defendant received KRW 25 million from the victim to the account of community credit cooperatives (F) in the name of the Defendant for the purpose of borrowing money.

Accordingly, the defendant was given property by deceiving the victim.

Maz.

1. Whether the crime of fraud is established through the deception of the loan not guilty portion shall be determined at the time of borrowing. Therefore, even if the defendant had the intent and ability to repay the loan at the time of borrowing, if he did not repay the loan thereafter, it is merely a civil default, and it cannot be said that a criminal fraud is established.

On the other hand, the existence of the crime of fraud, which is a subjective constituent element of fraud, should be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, contents of the crime, process of transaction, relationship with the victim, unless the defendant makes a confession.

However, in the instant case, it is insufficient to conclude that the Defendant had no capacity to repay or intent to repay, even if comprehensively considering all the evidence submitted by the prosecutor. Rather, according to the evidence duly adopted and examined by the court, the following circumstances are acknowledged.

From the end of 2011, the Defendant was involved in helping C, a corporation operated by C, with an order of contract or the provision of business items.