A. On June 2012, the Defendant: (a) entered into a contract with the victim and the victim to import and supply them to the victim; (b) pursuant to the said contract, the Defendant sent USD 10,00 to the Japanese company around August 2012 when ordering the instant machine; (c) however, even though the Defendant sent USD 10,00 to the Japanese company around April 2014, it was merely a failure to supply the instant machine as it was inevitably promised to the victim due to continuous non-competitive and increase in personal debt; (d) there was no intent to deceive the victim from the beginning or receive money from the victim as the price of the instant machine.

B. The sentence of the lower court’s unfair sentencing (eight months of imprisonment) is too unreasonable.

2. Determination

A. The lower court acknowledged the following facts based on the evidence duly adopted and investigated by the lower court regarding the assertion of mistake of fact: (i) the victim would import the instant machinery from the Japanese company on June 15, 2012 and supply it to September 30, 2012.

On the other hand, a mechanical sales contract was concluded as KRW 69 million. As if the Defendant orders the instant machine in a Japanese company, the Defendant demanded the Japanese company to pay money as down payment, intermediate payment, shipping money, etc. on June 15, 2012, the intermediate payment of KRW 13.8 million on July 18, 2012, the intermediate payment of KRW 13.8 million on August 28, 2012, and the shipment amount of KRW 48.3 million on August 28, 2012.

However, the Defendant did not supply the instant machinery to himself/herself so that the date of the promise is far more than that of the payment, and was found in the Japanese company, and therefore, the Defendant did not receive any order from the Defendant and did not receive any down payment.

The defendant was aware that he used his money he received from the defendant for personal purposes unrelated to the purchase price of the machinery of this case.