A. The Defendant, as stated in the facts charged of this case, did not deceiving the victim to use money as auction funds at the time of receiving money from the injured party as stated in the facts charged of this case, and had sufficient intent to repay and ability to repay to the Defendant, and had no intention of defraudation

Nevertheless, the judgment of the court below which convicted the Defendant of the facts charged of this case is erroneous and adversely affected by the judgment.

B. The sentence sentenced by the lower court to the Defendant (one year of imprisonment) is too unreasonable.

2. Determination

A. In light of the reasoning of the judgment of the court of first instance and the evidence duly examined by the court of first instance as to the assertion of mistake of facts, the first instance judgment on the credibility of the statement made by the witness of the court of first instance was clearly erroneous in the determination.

In light of the special circumstances or the results of the first instance examination and the results of the additional examination of evidence conducted until the closing of oral argument, maintaining the first instance judgment on the credibility of the statement made by the witness of the first instance court is not deemed remarkably unfair. However, the appellate court may not reverse without permission the first instance judgment on the sole ground that the first instance judgment on the credibility of the statement made by the witness of the first instance court is different from the appellate court’s judgment (see, e.g., Supreme Court Decisions 2017Do7871, Mar. 29, 2018; 2008Do7917, Jan. 30, 2009). In addition, insofar as the criminal intent of defraudation, which is a subjective constituent element of the crime of fraud, is not a confession of the defendant unless the defendant is led, it is inevitable to judge the objective circumstances such as the defendant’s history before and after the crime, environment, details of the crime, and the process of performing transactions, etc., and the defendant is not a final and conclusive criminal intent (see, 2007.88.28.