In full view of the following facts: (a) the Defendant consistently stated that he/she would not have borrowed money from the beginning if he/she was unaware of the said money; (b) the Defendant did not have any property or fixed income at the time of borrowing; and (c) the Defendant paid KRW 1500,000 in the month when he/she borrowed money without any special income to use the borrowed money for gambling; and (d) the Defendant did not repay most of the borrowed money to the victim even though he/she used it for gambling, the Defendant could fully recognize the fact that he/she borrowed money from the beginning, as well as did not have the intent and ability to repay the borrowed money,

Nevertheless, the lower court found the Defendant not guilty of the facts charged of this case, which erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2. Determination

A. The summary of the facts charged is that the Defendant is a foreigner of Chinese nationality, and there is no certain occupation, and the Defendant is a relative with the victim C from the time of middle school students.

On October 22, 2009, the Defendant called the victim to “affort money due to shortage of living costs” by phoneing the victim at a non-permanent place.

However, in fact, the Defendant did not use all the money borrowed from the damaged party with no certain income at the time for living expenses or gambling, and was thought not to change it, and thus there was no intention or ability to pay the money even if he borrowed the money from the damaged party.

As such, the Defendant, by deceiving the victim, received KRW 500,000 from the victim to the national bank account in the name of the Defendant, from around September 2013, and received KRW 40,50,000,000 from around 18 times as shown in the attached list, from around September 2013.

B. The lower court, on the following grounds, did not prove the facts charged of this case.