A. Fact-misunderstanding Defendant borrowed KRW 30 million from the victim E to use it for gambling money, not for the repair cost of a building, and the victim was aware of this fact and lent the above money to the Defendant. Therefore, the Defendant deceiving the victim.

It cannot be said that the defendant had the intent and ability to repay the borrowed money at the time of borrowing the above money, so there was no intention to commit the crime of defraudation by the defendant.

Nevertheless, the court below erred by misapprehending the legal principles as to the facts charged of this case.

B. The punishment sentenced by the lower court (six months of imprisonment) is too unreasonable.

2. Determination

A. In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court regarding the assertion of mistake of facts, it can be sufficiently recognized that the Defendant, as indicated in the facts charged in the instant case, deceiving the victim to “a loan the cost of repairing the building to KRW 30 million,” thereby borrowing KRW 30 million from the injured party, and that the Defendant did not have the intent and ability to fully repay the said loan to the injured party at the time of the aforementioned borrowing.

Therefore, this part of the defendant's argument is without merit.

1) The victim consistently stated from the investigative agency to the court of the court below that “the defendant lent the above money by lending KRW 30 million at the cost of repairing the building.” At the time of the prosecutor’s investigation, the defendant also made a statement from the prosecutor’s office to the effect that “it is true that the defendant borrowed money by gambling and neglecting money that should be collected and repaired, and that he did not talk to the victim that he would speak as above and will use money for gambling,” which corresponds to the facts charged in the instant case.

2) On September 17, 2012, the Defendant borrowed KRW 30 million from an injured party at midnight on September 17, 2012, from the following day, in the name of the Defendant.