The intent of the crime of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, and the process of performing the transaction before and after the crime, unless the Defendant is led to the confession (see, e.g., Supreme Court Decision 97Do2630, Jan. 20, 198). The criminal intent is sufficient not to have a conclusive intention but to have dolusive intent (see, e.g., Supreme Court Decision 83Do340, May 10, 1983). In the civil monetary lending relationship, the criminal intent of the defraudation of the borrowed money can not be acknowledged, but if the Defendant borrowed the money by pretending to repay the money without a clear intent to repay or having no ability to repay within the due date of repayment, the criminal intent of the defraudation can be recognized.

(See Supreme Court Decision 86Do1227 delivered on September 9, 1986, etc.). The lower court upheld the first instance judgment convicting the Defendant of the instant facts charged on the ground that it is difficult to deem that the Defendant had an ability or intent to repay KRW 30 million from the victim C at the time of borrowing the evidence duly admitted by the first instance court, by comprehensively taking account of the evidence duly admitted by the first instance court.

The judgment below

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted by the court of first instance, the defendant was aware that excessive debt burden and the company's enemy who operated the court below knew of the possibility of making it impossible to repay the debt in an urgent situation where the interest was paid due to the excessive aggravation of the financial condition, and the defendant could have concealed this fact and borrowed money from the victim. Thus, the court below found the defendant guilty of the facts charged in this case on the ground that the defendant was guilty. contrary to the allegations in the grounds of appeal, the court below erred by misapprehending the logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence, or exceeding the bounds of the principle of free evaluation