2. Determination

A. On March 3, 2011, the Defendant concluded a contract for landscaping construction (hereinafter “instant landscaping construction contract”) with “G” located in F in Nam-si, Namyang-si, Nam-gu, Seoul, on the part of the victim D in Gangnam-gu, Seoul, on March 3, 201, the summary of the facts charged, stating that “The construction will be completed by August 31, 201 on the face of the construction cost, by the total cost of KRW 100 million.”

However, even if the defendant receives the construction cost from the victim, he/she has used most of the construction cost in order to repay the unpaid price related to the previous construction and the personal debt, and there was no intention or ability to normally perform the construction work within the time limit, such as that the construction work has not been performed almost differently from the terms

Nevertheless, the Defendant, by deceiving the victim, received delivery of KRW 33 million as the down payment on March 3, 201 from the victim; KRW 33 million on March 31, 201; KRW 33 million on March 31, 201; and KRW 2 million on April 26, 201.

B. The lower court’s determination based on the records reveals the following: (a) the Defendant was to conclude the instant landscaping contract through S wooden, and the Defendant does not seem to have been actively making efforts to conclude the contract; (b) the Defendant actually engaged in the storage and transplantation of trees until August 24, 201 at the site of the instant case; and (c) the victim and the witnessO of the lower court were 10% of the total progress of the construction work performed by the Defendant.