The defendant shall be innocent.

A. The victim of mistake of facts or misunderstanding of legal principles was aware that at the time of lending money, C Co., Ltd. (hereinafter “C”) and the Defendant’s financial situation is not good.

Although the defendant did not deceiving the victim, and the victim did not lend money due to an error in the intent or ability of the defendant, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby convicting the defendant of the facts charged.

B. The lower court’s sentence of unreasonable sentencing (two months of imprisonment, two years of suspended execution, and one hundred and sixty hours of community service) is too unreasonable.

2. Determination

A. The Defendant in the facts charged is the Seoul Gangnam-gu building B, the actual operator of C in the 9th floor, and the victim D who was an employee of the said company.

On February 2, 2017, the Defendant made a false statement to the victim in the above company office, stating that “When the Defendant received a loan from the lending company on behalf of the lending company, the principal and interest will be repaid every month.”

However, in fact C is difficult to provide financial resources such as failure to pay monthly wages in the state of proper operation, and there is no specific plan for financing, and even if the defendant borrowed money from the victim, he did not have the intent or ability to pay it monthly.

The Defendant, on February 10, 2017, received from the victim on February 10, 2017, KRW 10 million from the F Bank account in the name of C on the same day, among the amount of KRW 26 million that the victim received from E, and KRW 16 million from the said account on February 13, 2017.

Accordingly, the defendant was given property by deceiving the victim.

B. The relevant legal principle of fraud is established by deceiving another person to make mistake by deceiving him/her, and by inducing his/her disposal act to receive property or gain pecuniary advantage. As such, there should be causation between deception, mistake, and property disposal act.

(see, e.g., Supreme Court Decision 2000Do1155, Jun. 27, 2000). Any act is an error in others.