[2] The case reversing the judgment of the court below on the ground that there was an incomplete hearing as to whether there was a criminal intent to obtain fraud at the time of borrowing

[2] The case reversing the judgment of the court below on the ground that the court below erred by misapprehending the rules of evidence or by failing to exhaust all necessary deliberations, or by misapprehending the legal principles on fraud, on the ground that the court below found that the defendant had the criminal intent to commit fraud on the sole basis of such macrofication, even though the court should have deliberated more closely on the objective circumstances to recognize the criminal intent of defraudation, and then should have judged whether the defendant had the criminal intent to commit fraud at the time of fraudulentation

1. As to the damage of documents

Examining the evidence adopted by the court of first instance by the court below in light of the records, the court below's finding the defendant guilty of the destruction of documents as stated in its judgment is just, and there is no error of law by misunderstanding of facts against the rules of evidence, or by misapprehending the legal principles on the crime of destruction of documents

2. As to fraud

Of the facts charged in this case against the defendant, the summary of the fraud in the judgment of the court of first instance that "if the defendant borrowed money at the victim Kim Jong-gun's office of 65, 1994, the defendant will pay 600,000,000 won, he will pay her the first number of public trials and will receive 600,000 won from her woman, i.e., he received her from her woman from her woman, i.e., e., a gold 60,00 won." Accordingly, the court below affirmed the judgment of the court of first instance that found the defendant guilty by taking into account each of the statements and the witness (the summary of the court of first instance did not state the witness's name in the evidence of the court of first instance but it appears that the witness's name was omitted due to a mistake in the name of Kim Jong-gun's Kim-gun, the first public prosecutor in the judgment of first instance, and the judicial police officer's prior to the handling of affairs.

However, it should be determined at the time of borrowing the money. Thus, if the defendant has the intent and ability to repay at the time of borrowing, even if he refuses to repay the money after completely denying the loan, this is merely a civil default, and it cannot be said that a criminal fraud is established. Meanwhile, unless the defendant does not make a confession, the existence of the criminal intent of defraudation, which is a subjective constituent element of the crime, shall be determined by taking into account objective circumstances such as the defendant's financial power, environment, contents of the crime, the process of the transaction, the relationship with the victim, etc. Therefore, the decision of the court below that found the defendant guilty of the crime of fraud is difficult from this point of view.

In other words, among the evidence presented as evidence of conviction, the defendant's statement of the Lee Jong-tae and the husband of the former shall be set at 2% of the interest rate of 600,000 won on the date and time of the judgment of the court below, which is the victim, the defendant who was the victim, was given a loan to him, and he was given the defendant's seal on the loan certificate. The first following reasons are that the defendant's demand of payment is that he did not want to completely deny the loan from November 26, 1994 to the present, and the defendant's statement is insufficient to recognize that the defendant borrowed and paid the above money in cash or money equivalent to 50,000 won from the husband and wife during several years to 193. However, although the above money was not borrowed on the date of the judgment of the court below, and there is no intention to borrow it as a loan certificate or there is no ability to accept it at the time of the loan.

Rather, according to the defendant's statement at an investigative agency, the defendant has a lot of approximately 10,00,00 won at the market price of asbestos slate. However, if the defendant borrowed 600,000 won without dry field, the defendant's ability to repay the above borrowed money is changed (20,49 pages of investigation records). It cannot be deemed that the defendant did not have the ability to repay the borrowed money. On the other hand, as seen above, it is recognized that the defendant denies the above borrowed 600,000 won at the time of maturity and denies the fact that the defendant did not have the intent to repay the borrowed money at the time of maturity, but according to the evidence of the court below, the defendant had no intention to borrow the borrowed money from 1972 to 190,000 won, and it is difficult to conclude that the defendant borrowed money from 190,000 won to 190,000 won to 190,000 won and 300,000 won, respectively.

Therefore, the court below should have deliberated more closely on the objective circumstances to recognize the criminal intent of the above fraud, and then should have determined whether the defendant had the criminal intent of the fraud at the time of the above loan. However, the court below's finding that there was the criminal intent of the crime of fraud only by such macrofication, and finding the defendant guilty of the facts charged of the crime of fraud was erroneous by misapprehending the rules of evidence or failing to exhaust all necessary deliberations, or by misapprehending the legal principles of the crime of fraud. Therefore, the argument that points this out is with merit.

3. Therefore, it is obvious that the part of the judgment of the court below convicting the above charges of fraud cannot be maintained as it is. The judgment of the court below is reversed in its entirety and the case is remanded to the court below for a single punishment, since the crime of fraud and damage to documents is punished by concurrent crimes under the former part of Article 37 of the Criminal Act. It is so decided as per Disposition by the assent of all participating

Justices Lee Jae-soo (Presiding Justice)