The guilty portion shall be reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

The judgment below

Part of acquittal.

A. Defendant 1 is guilty of the facts) The Defendant: (a) remitted the Defendant’s total of KRW 63,000,000 to P who does not have any obligation relationship with the Defendant with respect to the Defendant’s check and the obligation to pay for the instant check to the Victim G Co., Ltd. (hereinafter “G”), and (b) has the Defendant remitted the total of KRW 230,000 to F Co., Ltd. (hereinafter “I”), and (c) has the Defendant supplied the Victim G with the Montreald amount of KRW 120,000,000 to offset it with the money claim; (d) there was no intention and ability to pay for the said check and the obligation to pay for the said amount by offsetting it with the money claim; and (e) there was no criminal intent to obtain fraud.

B) On July 13, 2016, the Defendant had the intent and ability to repay KRW 100 million borrowed from the victim D and had no intention to commit the crime of defraudation.

C) Nevertheless, the lower court found all of the charges guilty, and the lower court erred by misapprehending the facts.

2) The lower court’s improper sentencing is too unreasonable.

B. Comprehensively taking account of the evidence submitted by the Prosecutor 1, the lower court found the Defendant guilty of all of the facts charged, even though the Defendant fully recognizes the fact that he/she acquired 35,380,800 won in total from C Co., Ltd. (hereinafter “C”) and acquired 150,000 won in total from D around March 10, 2016, and that he/she acquired 150,000 won in total from D.

2) Improper sentencing of the lower court is deemed unreasonable.

2. Determination

A. Determination on the Defendant’s assertion of mistake of facts 1) The criminal intent of defraudation, which is a subjective element of fraud, of a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, shall be determined by taking into account the objective circumstances such as the Defendant’s financial history, environment, details and contents of the crime before and after the crime, as long as the Defendant does not confession. The criminal intent is not a conclusive intention, but a dolusent intention is also sufficient (Supreme Court Decision 2005Da3288, Mar. 24, 2005).