However, at the time, the Defendant was scattered with debt owed to many persons, including five million won borrowed from D, and was faced with difficulties in paying interest on the debt, and was subscribed to E and D’s management. However, the Defendant was willing to pay the debt by lending money from the victim and receive the fraternity and to prevent the repayment of the debt again. Therefore, even if the Defendant borrowed money from the victim, there was no intention or ability to pay the debt.

Nevertheless, the Defendant, as seen above, received the total of KRW 10 million over three occasions, including KRW 3 million on July 15, 2009 and KRW 5 million on February 1, 2010, by the same method, by deceiving the victim as if the Defendant were to repay the loan of the victim, and by receiving KRW 2 million from the victim.

2. Determination

A. Whether fraud is established through the deception of the borrowed money should be determined at the time of borrowing. Thus, even if the defendant had the intent and ability to repay the borrowed money at the time of borrowing, if the defendant did not repay the borrowed money thereafter, this is merely a non-performance under civil law, and it cannot be said that a criminal fraud is established. Meanwhile, the existence of the criminal intent of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by taking into account the objective circumstances such as the defendant's financial ability before and after the crime, environment, content of the crime, process of transaction, and relationship with

(see, e.g., Supreme Court Decisions 95Do3034, Mar. 26, 1996; 2007Do1070, Feb. 14, 2008). B

The records of this case are as follows.