A. Defendant 1) In fact, the Defendant used money borrowed from the victim D (hereinafter “victim”) as a deposit money for a dance institute.

In addition, the victim was well aware of the economic situation of the defendant at the time, and the defendant was unable to repay the money borrowed by the victim to the victim because the location of dance institute did not permit the establishment of a sports dance institute.

There is no intention to commit fraud against the accused.

B) Although the Defendant attempted to engage in a foreign exchange transaction business with money borrowed from the victim, the Defendant did not commence the business due to a conflict of opinion between the foreign exchange divers and the operator of the automatic program, and did not pay the money borrowed by borrowing the cost of preparation for the business. There is no criminal intent to defraud the Defendant. 2) The lower court’s sentence is heavier than the Defendant’s punishment.

B. The Prosecutor’s sentence of the lower court is light.

2. Determination

A. 1) The criminal intent of defraudation, which is a subjective constituent element of a crime of fraud in relevant legal principles, is to be determined by comprehensively taking account of the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and process of transaction before and after the crime, insofar as the Defendant does not make a confession. In the civil monetary lending relationship, the criminal intent of defraudation can not be acknowledged with the fact of nonperformance. However, in a case where the Defendant borrowed money as if he did not have the intention of full repayment or even though he did not have the ability to repay within the due date of payment promised at the time of repayment, the criminal intent of defraudation may be recognized (see, e.g., Supreme Court Decision 2010Do18139, May 13, 201). In addition, deception as an act of fraud does not necessarily require false indication as to the important part of the juristic act, but causes mistake to the other party.