2. Determination

A. The summary of the facts charged of the instant case states that “The Defendant would pay money within one-half months if the Evalescent Contract that can receive KRW 380,000,000,000 is to have been lent to the victim D immediately, at the office of the (ju) office in Seongbuk-gu, Daegu-gu, B and 3 around November 2013, and that “I will pay money within one-half months if the Evalescent Contract that can receive KRW 380,000,000,000 is to have been lent to the victim,” and that “I will make a full payment including the money borrowed prior to the payment of the down payment, as the said office borrowed money is additionally lent KRW 30,00,000 to the victim.”

However, in fact, the contract regarding the E-Cvalescent was not expected to be a sexual intercourse immediately, and around the end of December 2013, it was not expected that the contract regarding the above hospital was not a sexual intercourse, and thus, it was not expected to receive the down payment. Since the business profit of the Defendant’s company was in a state of deficit, the Defendant did not have any intent or ability to pay the down payment even if he borrowed money.

Nevertheless, on November 29, 2013, the Defendant, by deceiving the victim as above, received KRW 40 million in total from the national bank account under the name of the Defendant (F) and KRW 30 million in total from the same account on December 31, 2013.

B. In full view of the following circumstances, the lower court’s judgment is difficult to believe that the victim’s statement that the Defendant was able to repay the down payment under the Evalescent Contract as soon as he/she received the down payment under the above contract, and that he/she lent a sum of KRW 70 million as stated in the facts charged, and rather, the Defendant is the victim’s intermediary.