A. A. Around May 26, 2010, the Defendant had talked with the victim as stated in the judgment of the court below and borrowed two copies of the check from the victim (total 120 million won). However, there was no intention or ability to repay at the time, and there was no intention to commit fraud.

Nevertheless, the judgment of the court below which convicted the Defendant of the facts charged of this case is erroneous and adversely affected by the judgment.

B. The sentence imposed by the court below (two years of suspended sentence in October) is too unreasonable.

2. Determination

A. In a civil monetary lending relationship with regard to a mistake of facts, the criminal intent of defrauding the borrowed money cannot be recognized with the fact of default. However, in a case where the defendant borrowed the money by pretending to repay the money as if he/she did not have the intention of full repayment or had no ability to repay it within the due date which was promised at the time of repayment, the criminal intent of defraudation may

(See Supreme Court Decision 2010Do18139 Decided May 13, 201). The following circumstances recognized by the court below based on the evidence duly adopted and examined by the court below (see Supreme Court Decision 2010Do18139, May 13, 201). In other words, the defendant borrowed KRW 30 million from I around September 2009, including borrowing KRW 100,000 from the National Bank around April 201, the defendant took a loan of KRW 370,00 from the National Bank, and did not own any assets at the time of the instant crime, while the defendant did not own any assets; ② The defendant explained as borrowing money to the victim; however, the defendant used a considerable portion of the borrowed money from the victim in the repayment of the existing debt. In light of the economic situation at the time of the loan, it cannot be deemed that there was no intent or ability to repay the money more than 6 months after the date of the loan; ③ The defendant borrowed money automatically at the time of the investigation by the prosecutor.

Funds shall be raised urgently under the circumstances that are difficult at the time.