A. misunderstanding of facts and misunderstanding of legal principles that the Defendant entered into an agreement on business partnership with the victim (hereinafter “instant agreement”) and received 25 million won in return, was capable of performing his/her obligations at the time of entering into the instant agreement, and the Defendant did not perform his/her obligations due to the lack of business feasibility of the E commercial buildings. Therefore, there was no deception of the victim, and there was no intention to commit fraud.

B. The sentence imposed by the lower court (four months of imprisonment) is too unreasonable.

2. Determination

A. In a case where a defendant denies the criminal intent of defraudation of facts and misapprehension of legal principles, the facts constituting the subjective element of such crime must be proven by means of proving indirect facts or circumstantial facts that have considerable relevance with the criminal intent due to the nature of the things given the nature of the things. In this case, what constitutes an indirect or circumstantial facts that have considerable relevance with the criminal intent should be determined by means of reasonably determining the link of facts based on the sound observation or analysis ability based on normal empirical rule.

On the other hand, the crime of fraud is established even by willful negligence. In this case, the willful negligence has the awareness of the possibility of occurrence of the crime, and furthermore, there is an intent to deliberate on the possibility of occurrence of the crime. Whether the perpetrator has accepted the possibility of occurrence of the crime should be confirmed from the standpoint of the offender, taking into account how the possibility of occurrence of the crime is assessed if the general public is based on the specific circumstances, such as the form of the act and the situation of the act committed outside, rather than dependent on the statement of the offender.

(see, e.g., Supreme Court Decision 2009Do5075, Sept. 10, 2009). In light of the foregoing legal doctrine, the instant case is health room.