1. The summary of the facts charged in the instant case is as follows: “The Defendant, as the de facto representative director of the Company C, is operating the Dwa Holdings, and even if being supplied with food materials, did not have the intent or ability to pay the cost of the goods. However, if the Defendant supplied F with the food materials on December 4, 2012, it would be settled on the 15th and 30th of each month on the 15th of December.

Along with the end of fraud, F received food materials equivalent to KRW 2,778,00 in total of KRW 2,497,100 and KRW 280,90 on December 12 of the same month from F, and acquired them by deception.

“....”

The lower court upheld the first instance judgment that convicted of the instant facts charged as it is.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Whether a crime of fraud is established shall be determined at the time of the act, and the criminal intent of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by taking into account the objective circumstances such as the defendant’s financial history before and after the crime, environment, details and contents of the crime, and the process of performing the transaction, unless the

Inasmuch as the recognition of conviction of one part of the facts charged ought to be based on evidence with probative value that leads a judge to have the conviction that the facts charged are true beyond a reasonable doubt, even if there is no such evidence, if there is doubt of guilt, it is inevitable to determine the benefit of the defendant, and the same applies to the recognition of the criminal intent, which is a subjective element of fraud (see, e.g., Supreme Court Decision 2012Do6011, Aug. 23, 2013). (b) Review of the reasoning and evidence of the lower judgment reveals the following circumstances.

1) The Defendant was keeping the instant database operation fund in its own account and C Co., Ltd.’s account. From December 4, 2012, the Defendant supplied food materials from F to January 2013, 2013, following the suspension of its operation.