A. As to the defraudation of money by mistake, the court below recognized the facts charged and convicted the defendant, which affected the conclusion of the judgment, because the defendant had the intent and ability to repay the money at the time of borrowing the money from the victim, and the defendant fully repaid the money, and thus, the defendant did not have intention to commit fraud.

B. The sentence imposed by the court below on the defendant (eight months of imprisonment) is too unreasonable.

2. Determination

A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud to determine the mistake of facts, should be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history before and after the crime, the environment, the content of the crime, the process of transaction execution, etc. insofar as the Defendant does not make a confession. The intent of the crime is not a conclusive intention

(see, e.g., Supreme Court Decision 2008Do1697, Jun. 23, 2009). In addition, in a civil monetary lending relationship, the criminal intent of defraudation of the borrowed money can not be acknowledged with the default of obligation. However, in a case where the defendant borrowed money as if he would have had no intention to repay or had no ability to repay within the due date as agreed upon by the loan, the criminal intent of defraudation may be recognized.

(See Supreme Court Decision 83Do1048 delivered on August 23, 1983). Based on the above legal principle, the health stand in this case based on the foregoing legal principle, and the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, namely, the Defendant was liable to pay more than KRW 200 million to his family members and transaction companies due to the enemy incurred from G festivals in 2008 and 2009, and there was no movable or immovable property under the Defendant’s name. However, the apartment house of KRW 80 million was registered under the Defendant’s wife H.