A. Although the Defendant, at the time of borrowing KRW 30 million from the victim, was liable for a debt of KRW 200 million including KRW 100 million, including KRW 30 million and other debt of KRW 100 million, on several occasions after borrowing the money from the victim, and was able and able to repay the money at the time of the above borrowing, and thus, there was no intention to commit fraud, the lower court found the facts charged in the instant case and convicted the Defendant, thereby adversely affecting the conclusion of the judgment.

B. The sentence imposed by the court below on the defendant (eight months of imprisonment and two years of suspended sentence) is too unreasonable.

2. Determination:

A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud to determine the mistake of facts, should be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history before and after the crime, the environment, the content of the crime, the process of transaction execution, etc. insofar as the Defendant does not make a confession. The intent of the crime is not a conclusive intention

(see, e.g., Supreme Court Decision 2008Do1697, Jun. 23, 2009). In addition, in a civil monetary lending relationship, the criminal intent of defraudation of the borrowed money can not be acknowledged with the default of obligation. However, in a case where the defendant borrowed money as if he would have had no intention to repay or had no ability to repay within the due date as agreed upon by the loan, the criminal intent of defraudation may be recognized.

(See Supreme Court Decision 83Do1048 delivered on August 23, 1983). Based on the above legal principle, the health care unit for the instant case and the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, namely, the Defendant had a financial difficulty, such as (i) before and after the date and after the date specified in the facts charged, and (ii) the Defendant had a financial burden equivalent to KRW 300 million on the part of the Defendant’s business.