A. In fact, the Defendant, who borrowed 100 million won from the injured party, used most of the KRW 100 million for the opening of the main office, and actually operated approximately one year after opening the main office, and subsequently closed down the main office due to the business depression.

Therefore, as the defendant had the intention and ability to repay at the time of borrowing, there was no intention to commit the crime of defraudation by the defendant.

B. The sentence sentenced by the court below to the defendant (one hundred months of imprisonment) is too unreasonable.

2. Determination

A. In full view of the following circumstances recognized by the lower court as a whole, comprehensively taking account of the evidence duly adopted and examined by the lower court regarding the assertion of mistake of facts, the Defendant’s assertion on this part is not acceptable, since the Defendant could sufficiently recognize the fact of deceiving the victim as stated in the lower judgment.

(1) The injured party in an investigative agency and a court of original instance may raise a high amount of money to the injured party while holding a golf shop at the time when the accused borrowed money.

E There is a fixed deposit of the leased income from the building of the E.

was stated “.....”

② Around the time when the Defendant borrowed money from the injured party, the Defendant was subject to a tax investigation on the golf shop and closed the said golf shop with a surcharge of KRW 480 million imposed on the said golf shop. The Defendant collected the penalty surcharge of KRW 56 million among them and did not pay the remainder of the penalty surcharge. The Defendant’s financial institutions and third parties did not pay approximately KRW 170 million in total.

③ On July 5, 2010, the Defendant: (a) received 100 million won from the injured party; (b) used most part of the repayment of financial institutions and personal debts; and (c) paid to the injured party about KRW 5.5 million in total as interest between five years and five years from the time of borrowing.

B. The fact that the defendant's judgment on the illegal argument of sentencing is insufficient to deny the criminal intent of defraudation, and is sentenced to imprisonment with labor for fraud.