The guilty portion shall be reversed.

Defendant

A Imprisonment with prison labor of three years and six months, and Defendant B shall be punished by imprisonment with prison labor of five years.

A. The sentence that the court below sentenced the Defendants to the Defendants (the four years of imprisonment with prison labor for the Defendants A and the six years of imprisonment for the Defendants B) is too unreasonable.

B. In light of the fact that the prosecutor (1) recognized the criminal intent of defraudation of facts by the police, and most of the money received by the reversal of the confession statement in the court of the court below was used for the purchase of the vehicle, but the ground for purchasing the vehicle is not presented, Defendant A can be recognized as the criminal intent of defraudation at the time of borrowing money from the victim.

Nevertheless, the judgment of the court below that acquitted Defendant A of the charge of fraud is erroneous.

(2) The sentence imposed by the lower court on the Defendants is too uneasible and unfair.

2. Determination

A. As to the prosecutor’s assertion of misunderstanding of facts, the intent of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the defendant’s re-power before and after the crime, environment, content of the crime, process of transaction, relationship with the victim, etc.

Meanwhile, the finding of guilt ought to be based on evidence with probative value, which leads a judge to have a conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's conviction, it is inevitable to determine it as the benefit of the defendant, and this also applies to the recognition of the criminal intent, which is a subjective element.

In full view of the circumstances acknowledged by the record, the court below held that the facts acknowledged by the evidence submitted by the prosecutor are merely that the defendant A failed to repay the borrowed money, and it is not sufficient to recognize that the defendant A had an intention to defraud money from the beginning by deceiving the victim, and it is otherwise acquired by deception.