1. As to the facts charged against the victim non-indicted 1 corporation (hereinafter "victim non-indicted 2"), the court below judged that the non-indicted 2 corporation operated by the defendant 2 (hereinafter "non-indicted 2 corporation") was about 0.2. from 009 to 4, and that the non-indicted 4 corporation (hereinafter "non-indicted 4 corporation") was delivering Cheongba from around 009 to 0.0, the price of the above non-indicted 2 corporation was about 00, and the non-indicted 2's price was about 00,000 won to 0,000 won and 0.0,000 won and 10,000 won and 0,000 won and 20,000 won and 0,000 won and 0,000 won and 0,000 won and 0,000 won and 0,000 won and 0,000 won and 0,000 won.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, and the process of performing the transaction before and after the crime, insofar as the Defendant does not make a confession. The intent of the crime is sufficient not to have a definitive intention but to have dolusent intent. In particular, whether the crime of fraud by defraudation in the transaction of goods is established shall be determined by whether there was an intention or ability of the Defendant to repay the price of goods to the victim as if he did not have an intention or ability to repay the price of goods (see Supreme Court Decision 2007Do10416, Feb. 28, 2008, etc.).

In addition, a crime of fraud is established if a person who is supplied with goods fails to supply the goods to the other party, if he/she would have failed to supply the goods to the other party with a true notice about the method of preparing the price of goods (see Supreme Court Decision 2003Do5382, Sept. 15, 2005, etc.).

B. Examining the evidence duly admitted and examined by the first instance court in light of the record, the following facts are revealed.

1) The Defendant served as the representative director of Nonindicted Company 2 from January 2, 2008 to April 2010.

2) From February 2009, Nonindicted Co. 2 supplied Nonindicted Co. 3 and Nonindicted Co. 4 from September 2009 with soft soil, etc.

3) On December 22, 2009, the Defendant told Nonindicted 6 of the Victim Company’s director to the effect that “Nonindicted 2 Co., Ltd. supplied audience to Nonindicted Co. 4 and Nonindicted Co. 3, while receiving the price from the said customer, the Defendant would immediately settle the price with the Defendant.”

4) Accordingly, from December 22, 2009 to January 30, 2010, Nonindicted Co. 2 supplied the Victim Company with audience materials, including a total of KRW 267,412,00,00 from the Victim Company, and supplied it to Nonindicted Co. 4 and Nonindicted Co. 3.

5) Nonindicted Co. 2 received total amount of KRW 164,32,589 on January 11, 2010 from Nonindicted Co. 3, 2010, including KRW 22,760,80, KRW 25,353,089 on January 18, 2010, and KRW 164,332,589 on January 15, 2010 from Nonindicted Co. 4 and KRW 164,332,589 on the part of Nonindicted Co. 2 received from Nonindicted Co. 3, 200, including KRW 116,218,70 on January 15, 2010, and used both for the payment of goods to other creditors

6) The Defendant agreed to pay the victim company the amount of KRW 12,200,000,000 from December 22, 2009 to December 31, 2009, which was provided by Nonindicted Company 2 from around December 22, 2009 to December 31, 200. However, the Defendant did not timely pay the amount until January 2, 2010. However, even though the maturity was extended by January 7, 2010, the Defendant did not pay the amount.

7) On January 26, 2010, the Defendant prepared a note of payment to the effect that “the Defendant would pay KRW 210 million to the victim company and KRW 20 million to the victim company by February 16, 2010,” and that “the Defendant would pay KRW 20 million to the victim company by January 31, 2010, and KRW 20 million from January 29, 2010 to January 30, 201.”

8) On December 22, 2009, when Nonindicted Co. 2 was supplied with Cheongmuls first from the victim company, Nonindicted Co. 2 had been supplied with Cheongmuls first by the victim company, the amount of debt to other creditors who supplied Cheongmuls first was about KRW 320 million, and the transaction was suspended due to Nonindicted Co. 2’s failure to pay Cheongmuls first to the above creditors.

9) On January 22, 2010, Nonindicted Co. 5, among creditors of Nonindicted Co. 2, 2010, instructed Nonindicted Co. 2 to pay KRW 63,951,000 to Nonindicted Co. 2. On January 26, 2010, the Seoul Central District Court filed an application for provisional attachment of the claim against Nonindicted Co. 2’s claim for the provisional attachment of the claim against Nonindicted Co. 4 and Nonindicted Co. 3, and received a decision of provisional attachment of the claim from the said court around that time.

10) Nonindicted Co. 2 defaulted on April 2010.

C. In light of the aforementioned legal principles and the following circumstances revealed in the facts, namely, the method and timing of the Defendant’s drafting of the price of the audience, and the content that the Defendant deceptioned the victim company regarding the method and timing of payment, and the Defendant’s ability to repay the audience from the victim company at the time of the first supply of the audience from the victim company or the degree of the Defendant’s subsequent performance of obligations, etc., the Defendant had the intent to deceive Nonindicted 6 of the victim company’s director and defraud the audience from the victim company, and the victim company believed that Nonindicted 2, who was in the Defendant’s falsehood, provided the audience supplied by the victim company to Nonindicted 4 and Nonindicted 3, was immediately repaid to the victim company, and it is difficult to view that the Defendant had no criminal intent to commit fraud solely on the grounds cited by the lower court.

Nevertheless, the court below judged that this part of the facts charged is not recognized as a criminal intent by deceit. In this regard, the court below erred by misapprehending the legal principles on the criminal intent to acquire fraud, thereby affecting the conclusion of the judgment. The prosecutor's ground of appeal pointing this out is with merit.

3. Therefore, the non-guilty portion of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)