사기등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for a term of one year and eight months.
1. Summary of grounds for appeal;
A. misunderstanding of facts and misapprehension of the legal doctrine) The Defendant had the intent to pay money from the victims at the time of receiving money, and thus, the Defendant cannot be found to have committed fraud.
2) The Defendant did not have intention to obstruct the victim P’s relocation of the factory, and there was no intention to destroy property, and the Defendant is recognized as the grounds for excluding illegality under Article 20 of the Criminal Act or Article 23 of the Criminal Act.
3) Nevertheless, the lower court found the Defendant guilty of each of the instant charges, and the lower court erred by misapprehending the legal principles as to fraud, obstruction of duties, and damage to property.
B. The sentence of the lower court’s unfair sentencing (two years of imprisonment) is too unreasonable.
2. Determination
A. Determination on the misunderstanding of facts and legal principles 1) The intention of defraudation, which is a subjective constituent element of fraud, should be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, process of transaction, and relationship with the victim before and after the crime, unless the Defendant makes a confession (see, e.g., Supreme Court Decision 95Do3034, Mar. 26, 1996). In a civil monetary lending relationship under the civil law, the intention of defraudation of the borrowed money can not be acknowledged with the fact of nonperformance, but if the Defendant borrowed the money by pretending that the Defendant would make a clear representation or have no ability to repay within the due date of repayment (see, e.g., Supreme Court Decision 2017Do20682, Aug. 1, 2018). (b) Decision 2019Da126777, Mar. 26, 2016).
The argument is asserted.
However, it is acknowledged as follows by the evidence duly adopted and examined by the court below and the court below.