[2] The case holding that in case where a lender who borrowed money in the form of a number of days loan filed a complaint against the lender for the crime of fraud of the borrowed money, the lender cannot be deemed to have committed fraud at the time of the borrowing

[2] In a case where a lender who borrowed money in the form of a number of days loan filed a complaint for bankruptcy and the lender who received the decision to permit exemption from liability filed a complaint for fraud of the borrowed money, the case holding that the lender cannot be deemed to have committed fraud at the time of borrowing.

In fact, the Defendant had the credit card loans worth approximately KRW 50,000,000 at the time. Other personal obligations are about KRW 15,00,000,000, and even if the Defendant borrowed money from the victim, the Defendant was unaware of the intent or ability to repay it. However, around March 21, 2006, Nonindicted Party 1, located in Daegu-gu, Dong-gu, (hereinafter omitted), issued a total of KRW 26,000 per day from the victim’s house to the effect that “if the Defendant borrowed KRW 2,00,000,000,000 per day, the Defendant would have paid KRW 26,000 per day from the date of 100,000,000,000 from the victim’s house in the Daegu-gu, Daegu-gu (hereinafter omitted) on March 22, 206, and received KRW 20,000 from the victim’s association under the name of 10,007.

2. Determination:

A. Factual relations

In full view of each statement made by the Defendant and Nonindicted 1 in this Court, reference materials submitted by the defense counsel in this Court, each evidence submitted by the Prosecutor, and other circumstances indicated in the records, the following facts can be recognized ( although the victim has made a statement partly inconsistent with the following recognized facts, the victim's statement that is inconsistent with the statements concerning the basic and important matters, such as the amount of damage claimed by the victim, the terms and conditions of lending loans, and the amount of interest received, is not believed).

(1) The Defendant, who had been on the Ministry of Home Affairs, has been making a loan transaction from around 20 years to around 20 years to around 3 million won with money borrowed from around 50,000 won to around 50,00 won, whenever it is necessary to do so under the name of funeral, living expenses, husband’s hospital expenses, etc. from around 202.

(2) The Defendant borrowed a part of the principal and interest of the borrowed amount daily from the victim in the so-called “number of days loan” form. On the loan of KRW 1 million, KRW 1300,000 per day, 130,000 per day, thereby repaying the principal and interest of KRW 1.3 million per day. In short, the Defendant converted the interest to 10% per month.

(3) The Defendant paid the principal and interest on the borrowed money from the victim until the end of 2005, which was prior to the borrowing of the borrowed money stating the facts of the indictment.

(4) However, from March 2006 to January 2007, with respect to the instant loan borrowed from around January 2007, only paid only part of the principal and interest in a way of directly providing money to the victim, or remitting money to the victim or his father, and did not pay all the amount in accordance with the terms and conditions of the loan. The payment was delayed due to the delay in the time of payment, or was made in a lump sum, but the amount repaid from around October 2007 to around October 2007 constitutes the amount equivalent to the interest of 10% per month on the instant loan.

(5) When the repayment of the monthly loan by the Defendant was delayed on February 2, 2007, the victim continued to lend money to Nonindicted 3, who was attending the learning place company, after demanding the Defendant’s his/her father and descendant to give a guarantee. After that, the victim found Nonindicted 3’s company and then withdrawn the amount of money equivalent to three million won directly by taking the monthly deposit passbook and seal from his/her female.

(6) On March 8, 2007, the injured party delegated by the Defendant, and around March 8, 2007, set up a notarial deed of a loan agreement with Nonindicted 3 as a joint and several surety, wherein the injured party’s wife Nonindicted 2 as the creditor, and the Defendant as the debtor set up the above Nonindicted 3 as a joint and several surety.

(7) On November 23, 2007, the Defendant filed a petition for bankruptcy by including the Defendant’s debt amounting to KRW 30 million against Nonindicted 2’s father and wife in the list of creditors. On January 18, 2008, the victim filed a complaint against the Defendant as the instant fraud. After being declared bankrupt on May 19, 2008, the Defendant was decided to grant exemption from liability by this Court on December 23, 2008.

B. Fraud and mistake and existence of causation

(1) Fraud is established by deceiving another person to omit it in mistake and inducing such act of disposal, and acquiring property or pecuniary gain by inducing such act of disposal, and there is a causal relationship between deception, mistake, and property disposal act.

On the other hand, one of the main objectives of the individual bankruptcy and bankruptcy exemption system under the Debtor Rehabilitation and Bankruptcy Act lies in providing conditions under which the debtor is able to make efforts for economic rehabilitation in the future, either pressure due to his or her obligations prior to the declaration of bankruptcy even though he or she was suspended from office at the time of the declaration of bankruptcy, or plucking or plucking up his or her intention to discharge his or her obligations before the declaration of bankruptcy. However, in order to coordinate legal relations among interested parties, such as creditors, etc. and prevent abuse of the bankruptcy system, the Debtor Rehabilitation and Bankruptcy Act provides that the court may dismiss a petition for bankruptcy when it deems that the petition for bankruptcy is not bona fide or constitutes abuse of the bankruptcy procedure, and the court may reject the petition for bankruptcy if the case falls under any of the subparagraphs of Article 564 (1) of the same Act, and exclude a claim under each subparagraph of Article 566 of the same Act, including "right to claim damages caused by an intentional act by the debtor, etc., which belongs to the bankruptcy foundation, and thus, exclude the debtor from liability by means of fraud.

(2) Regarding the instant case, it is difficult for the Defendant to pay interest on the loan by the number of days from the nearest 00 persons to the Defendant, and the lender who borrowed the money is also unable to use the financial institution, and the lender who borrowed the money is also aware of these circumstances. The lender who borrowed the money with high interest rate of 0 days is expected to incur such risk as interest on the loan, and the victim was aware of the fact that it is difficult for the Defendant to use the money from 00 days before the loan to 00 days after the loan was made. In light of the above facts, it is difficult for the Defendant to view that the victim was aware that there were 0 days before the loan was made by the Defendant to use the money as interest rate of 10 days after the loan was made by the Defendant, and there is no other reason to view that the Defendant had been aware of the fact that it was difficult for the Defendant to use the money again from 20 days before the loan to 0 days after the loan was made by the Defendant. This is also difficult to expect that the Defendant was obligated to use the money as interest rate of the above.

3. Conclusion

Thus, the facts of the public prosecution of this case constitute a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325.

Judges Kim Sang-ap