A. Fact-misunderstanding, misunderstanding of legal principles that the Defendant had accumulated the debt of the Defendant’s company at the time of concluding the instant goods supply contract with the victim, or that the Defendant had made continuous transactions with the victim since around 2010, the Defendant failed to pay the price of the instant goods only; the products supplied by the victim were defective; the Defendant made efforts to normalize the company by entering into an additional goods supply contract with the Hongcheon-gun Office, etc., in light of the fact that the Defendant had acquired the intent by deception.

Although it cannot be seen, the judgment of the court below which recognized the facts charged of this case is erroneous in the misapprehension of facts or legal principles.

B. The sentence of the lower court’s unfair sentencing (six months of imprisonment, one year of suspended sentence, one year of community service work, 120 hours) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts and legal principles, 1) insofar as the criminal intent of defraudation, which is a subjective constituent element of fraud, is not the confession of the defendant, it is inevitable to determine by comprehensively taking account of the objective circumstances such as the defendant’s financial history, environment, details of the crime, and the process of performing transactions before and after the crime. The criminal intent is not a conclusive intention, but a willful intention is sufficient.

In particular, the establishment of fraud through deception in the transaction of goods should be determined by whether the defendant had the intention to acquire the goods from the damaged person by making a false statement as if he/she would repay the price of goods to the injured person even though there is no intention or ability to repay the price of goods at the time of the transaction (see Supreme Court Decision 2007Do10416, Feb. 28, 2008). 2) In full view of the following circumstances recognized by the evidence duly adopted and investigated by the court below, the fact that the defendant had the intention to obtain the deception at least is sufficiently recognized.

Therefore, the judgment of the court below that recognized the establishment of fraud is just and correct.