A defendant shall be punished by imprisonment for not less than two years and six months.

except that, for a period of four years from the date this judgment becomes final and conclusive.

In light of the above legal principles, the Defendant, while maintaining the inventory of steel plates and hardwares at an average of KRW 1.5 billion in the warehouse, operated the company normally, such as settling the bills equivalent to KRW 1.5 billion per month immediately before the default on payment, and the bill issued by H (hereinafter “H”) upon purchasing the steel products at H Co., Ltd. (hereinafter “H”) was merely an insolvent financial institution, and did not have any intent or ability to make settlement from the time of the transaction, and thus, the Defendant did not have any intent to commit fraud. However, the lower court erred by misapprehending that the Defendant was guilty of the crime of defraudation from the time of the transaction.

(2) The fact that hardware goods kept in custody in a warehouse have been offered as a security for transfer to J Co., Ltd. (hereinafter “J”), however, at the time of the establishment of security for transfer, a contract was concluded to allow free release of the said goods if only 200 million won or more inventory has been maintained, and at the time, there remains a inventory of at least 740 million won, and thus, the said goods cannot be deemed as a violation of the contract to establish a security for transfer.

The sentence of imprisonment with labor (two years and six months) of the lower court’s sentence of unfair sentencing is excessively unreasonable.

Judgment

The intent of the crime of defraudation, which is a subjective constituent element of the crime of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, shall be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, details of the crime, the process of transaction, the relationship between the victim and the defendant before and after the crime, unless the defendant confessions the crime. The criminal intent is sufficient not to

(1) In the event a bill is issued and delivered without notifying the addressee of the fact that the issuer of the bill is difficult to settle or is able to pay at the due date (see, e.g., Supreme Court Decision 2007Do10416, Feb. 28, 2008).

Supreme Court Decision 99 delivered on September 10, 1985