A. The judgment of the court below which found the defendant guilty by misunderstanding the fact that the defendant had the intention of self-performance and repayment, and the reason why the defendant failed to repay to the victim is due to unexpected management deterioration, and thus, it is erroneous in the misapprehension of legal principles and the judgment of the court below which convicted the defendant.

B. The sentence of the lower court (a fine of KRW 1.5 million) is too unreasonable.

2. Determination

A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud in the judgment of mistake of facts, is to be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial power before and after the crime, environment, content of the crime, process of transaction, etc. insofar as the Defendant does not make a confession. The criminal intent is sufficient not to have a conclusive intention but to do so (see, e.g., Supreme Court Decision 2007Do10416, Feb. 28, 2008). In relation to goods transaction, whether the crime of fraud by defraudation is established shall be determined by whether there was an intentional intent to acquire goods, etc. from the victim by making a false statement as if the Defendant were to repay the price of supplied goods, even though the Defendant did not have an intent or ability to do so at the time of transaction. Thus, it shall not be deemed that the delivery of goods cannot be deemed to constitute

(See Supreme Court Decision 2002Do5265 Decided January 24, 2003, etc.). Even according to the Defendant’s statement, the Defendant started to engage in the business of operating an I pharmacy at the original YY, but around October 12, 201, the Defendant started to be supplied with drugs from the victim, a wholesaler, at the Seo-gu Incheon, Seo-gu, Seo-gu, Incheon. However, there was a debt amounting to KRW 1.40 billion at that time (the trial record No. 160), but there was no particular property, and it was a loan of KRW 120 million for the opening cost, and KRW 30 million is the Defendant’s money.