The defendant shall be innocent.

Nevertheless, the court below found the Defendant guilty of the facts charged of this case. The court below erred by misunderstanding facts and affecting the conclusion of the judgment.

2. Determination

A. On February 8, 2013, the Defendant applied for a loan of KRW 200,000 won per month to the victim for a loan of KRW 120,000 per month when he/she received a loan from the victim even though the Defendant did not have any intent or ability to pay the interest even if he/she received a loan, and obtained a loan of KRW 200,000 from the victim as a loan.

B. The lower court found the Defendant guilty on the facts charged of the instant case on the ground that the Defendant’s partial statement in court, C’s legal statement, police interrogation protocol of the Defendant, loan application, employment certificate, investigation report (investigation of Witnesses C), and written accusation as evidence.

C. (1) The establishment of fraud by deception of the borrowed money should be determined at the time of the loan. Thus, if the defendant had the intent and ability to repay the borrowed money at the time of loan, even if he refuses to repay the borrowed money after the loan, this is merely a non-performance under civil law, and it cannot be said that a criminal fraud is established. Meanwhile, unless the defendant makes a confession, the existence of the criminal intent of defraudation, which is a subjective constituent element of the crime, shall be determined by comprehensively taking into account the objective circumstances such as the defendant's financial power, environment, details of the crime, process of transaction, and relationship with the victim, etc.

(see, e.g., Supreme Court Decision 95Do3034, Mar. 26, 1996). Meanwhile, with respect to a debtor facing a failure due to financial difficulties, the legal relationship among interested parties is adjusted.