A. Regarding a mistake of mistake, the Defendant received money from the victim D, but only borrowed money as a couple in a de facto marital relationship with the victim at the time while living with the victim at the time and did not have the intent to repay or ability to repay to the defendant at the time.

Nevertheless, the judgment of the court below that found this portion guilty is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

B. The lower court’s sentence of unreasonable sentencing (ten months of imprisonment) is too unreasonable.

2. Determination

A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud in determining the assertion of mistake of facts, should be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of transaction before and after the crime unless the Defendant confessions. The intent of the crime is not a conclusive intention, but a willful negligence is sufficient

(see, e.g., Supreme Court Decisions 2007Do10416, Feb. 28, 2008; 2007Do8726, Aug. 21, 2008). Moreover, as a subjective element of constituent elements of crime, dolusent intent refers to cases where the possibility of occurrence of crime is expressed as unclear and it is acceptable.

According to the evidence duly adopted and examined by the court below, the defendant, around August 4, 201, stated in the list of crimes attached to the facts charged, that the victim received a total of KRW 49,20,000 from the victim as stated in the following: (a) the defendant did not invest in the bond company, but used the above money to pay the debt borrowed from the bond company or to pay the credit card price in the name of the victim to the bond company; and (b) the defendant was requested to present the data invested in the bond company by the bond company.