A defendant shall be punished by imprisonment for not less than eight months.

However, for a period of two years from the date this judgment becomes final and conclusive.

A. In fact-finding, the Defendant could recover money immediately when the Cheongju-gu E (hereinafter “instant building”) is auctioned by the J. Accordingly, upon receiving a request from the J to raise the cost of maintaining the right to retention of the said building, the Defendant borrowed a total of KRW 33 million from the victim and paid the amount to the J according to the purpose of borrowing most of the borrowed money. It is merely impossible for J to pay the borrowed money to the victim on the wind that the J did not pay the money to the Defendant.

In addition, at the time of the loan of this case, the land of the Gangnam-gun G (hereinafter “instant land”) which the Defendant created the right to collateral against the victim was sufficiently worth being secured as a prospective development area, and the victim assessed the value as adequate and received as a collateral.

In other words, the first instance court found the defendant guilty of the facts charged of this case on a different premise, although the defendant did not deceiving the victim with the intention of deceiving the defrauded, and the first instance court erred by misunderstanding the facts and thereby affecting the conclusion of the judgment.

B. The imprisonment of the first instance court (eight months of imprisonment) is too unreasonable.

2. Determination

A. Comprehensively taking account of the following facts and circumstances acknowledged by the first instance court’s duly adopted and investigated evidence as to the assertion of mistake of facts, it can be sufficiently recognized that the Defendant deceptioned the victim as stated in the judgment of the first instance court, and that there was a criminal intent to acquire the victim at the time of borrowing the instant case.

Therefore, the defendant's assertion of mistake cannot be accepted.

① In a lawsuit brought against U.S. Co., Ltd., a limited company specializing in the sale and purchase of the Korean Agriculture Federation, which was the representative director J, the judgment was rendered on December 7, 2006 that there was no lien for U.S. Co., Ltd. on the instant building (Cheongju District Court Decision 2005Gahap5239), and its U.S. Co., Ltd.