However, in fact, the Defendant did not have any particular income or property, and there was no intention or ability to pay the amount of money even if he borrowed money from the victim because he did not have any specific income or property, and only took a 20 million won obligation.

As such, the Defendant, by deceiving the victim, received 20 million won from one bank account in the name of the Defendant under the name of the victim for the same day from the victim, and acquired it by fraud.

2. Determination

A. The intent of defraudation, which is a subjective constituent element of the crime of fraud, is to be determined by comprehensively taking account of the objective circumstances, such as the financial history, environment, details and contents of the crime before and after the crime, and the process of transaction execution, unless the defendant is led to confession.

The establishment of fraud through the defraudation of the borrowed money shall be determined at the time of borrowing. As such, even if the defendant had the intent and ability to repay the borrowed money at the time of borrowing, if he did not repay the borrowed money thereafter, it is merely a non-performance under civil law, and it cannot be said that a criminal fraud is established.

(See Supreme Court Decision 2007Do10770 Decided February 14, 2008, etc.). B.

According to evidence duly adopted and investigated by this court, it is recognized that the defendant was unable to borrow money from the complainant C on the date and time stated in the facts charged and make payment on the agreed agreed date.

However, the following circumstances acknowledged by each of the above evidence, i.e., (i) D loaned money to the Gu office members working at entertainment taverns and received interest thereon; (ii) the complainant wanted to do so to D; and (iii) D did so to the complainant.