A. In fact, the Defendant merely received 12 million won from the injured party under the pretext of expenses incurred in preparing technically following the new construction of a wooden house that the injured party intends to newly construct, and did not deceiving the injured party as stated in the judgment of the court below and did not intend to commit the crime of deception.

Nevertheless, the judgment of the court below that found the Defendant guilty on a different premise is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

B. The punishment sentenced by the lower court (an amount of five million won) is too unreasonable.

2. Determination

A. The criminal intent of defraudation, which is a constituent element of the judgment of fraud as to the assertion of facts, shall be determined by taking into account the objective circumstances such as the defendant's financial power, environment, details of the crime, process of transaction, etc., insofar as the defendant does not make a confession (see Supreme Court Decision 95Do424, Apr. 25, 1995). In borrowing money from another person, if the other party did not respond to the true notification of the method of raising funds to repay the borrowed money, if the other party did not respond to the true notification, it constitutes fraud (see Supreme Court Decision 2003Do5382, Sept. 15, 2005, etc.). The court below and the first instance court have duly adopted and investigated the evidence, and the victim has consistently introduced the funds from the court below and the investigative agency to the effect that the defendant loaned the funds to him as a new hotel in relation to the new establishment of a corporation, and that the victim has consistently loaned the funds to himself.