A. The judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous by misunderstanding the facts and affecting the conclusion of the judgment, since the defendant had a financial ability and intent to repay the 13 million won from the injured party at the time of borrowing them.

B. The punishment sentenced by the lower court (2.5 million won) is too unreasonable.

2. Determination

A. In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court regarding the assertion of mistake of facts, the Defendant’s assertion of mistake of facts is without merit, as it is sufficiently recognized.

(1) The Defendant borrowed KRW 13 million from the injured party to the effect that “A new tenant will make a repayment immediately after the lapse of one week if a part of the repayment of the preexisting tenant’s deposit is insufficient,” and the Defendant actually used the loan for other purposes, as well as not only used it for two years and six months, and the Defendant used it for other purposes with the consent of the injured party.

However, the defendant's statement is inconsistent with his statement at the time of his police investigation (Article 36 of the evidence record) / the defendant alleged to the effect that he was unable to repay the loan money after borrowing money from the injured party at the time of his initial police investigation. However, the defendant's assertion seems to have been changed to the point that the loan fraud alleged by the defendant was later than the point of time when he borrowed money from the injured party, and the defendant's assertion to the effect that he was sufficient enough to repay the loan money because he had an apartment house with the market price of KRW 480,00,000,000 and a claim for refund of deposit equivalent to KRW 3,000,00