A. Although it was true that a misunderstanding of facts Defendant intended to purchase Pyeongtaek-si E Forest Forest (hereinafter “instant land”) and received KRW 20 million from the victim as the down payment, it is difficult to recognize the Defendant’s criminal intent by defraudation with the victim, while the victim already purchased the instant land from another person and kept the said land in custody of another good thing when the victim had a good thing to return the said money, he/she borrowed KRW 15 million to G with the consent of the victim while he/she had a good thing to be sold to G, and returned KRW 5 million to the victim.

B. In light of the fact that the Defendant returned KRW 5 million to the victim of unfair sentencing, and that the Defendant transferred the claim of KRW 100 million to the Specialized Construction Co., Ltd. (hereinafter “Specialized Construction”) instead of paying the remainder of KRW 15 million to the victim of unfair sentencing (hereinafter “Specialized Construction”) and the damage was fully recovered, the sentence of the lower judgment is too unreasonable.

2. Determination

A. The following circumstances acknowledged through the evidence duly adopted and investigated at the court below and the court below's decision on the assertion of mistake of facts: (i) the defendant, who was employed in real estate, introduced the land of this case to the victim on or around December 13, 2004, and stated that if sold in installments after purchasing it, a large amount of profit would be made; (ii) the victim paid 20 million won as the down payment for the purchase of the land of this case to the defendant; (iii) however, the land of this case was already purchased by a third party; and (iv) the defendant lent 15 million won out of the above 20 million won to G without the victim's permission on or around December 28, 2004 without the victim's permission, it is recognized that the defendant acquired the above money by deceiving the victim even though the defendant did not have the intent and ability to purchase the land of this case even if he received money from the victim.

The defendant's assertion of mistake is without merit.

B. On the assertion of unfair sentencing