사기
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months.
1. According to the evidence submitted by the prosecutor of the gist of the grounds for appeal, although the court below found the defendant not guilty of the facts charged, it erred in the misapprehension of legal principles or misconception of facts, even though the defendant could fully recognize the fact of deceiving the victim without intent or ability
2. On the grounds indicated in its reasoning, the lower court determined that it is reasonable to view that the Defendant had the intent and ability to repay money at the time of borrowing money, but failed to repay the money on the agreed date due to the delay in business after the loan, and that there is insufficient evidence to find otherwise that the Defendant had the intent to commit the crime of defraudation from the time of borrowing money, and that the Defendant was acquitted.
3. However, the lower court’s determination is difficult to accept for the following reasons. A.
The establishment of fraud through the defraudation of legal borrowed money shall be determined at the time of borrowing. However, as long as the criminal intent of defraudation, which is a subjective constituent element of the crime of fraud, does not confession the defendant, it shall be determined by considering 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. The criminal intent is not a conclusive intention but a dolusent intention
(See Supreme Court Decision 2007Do10416 Decided February 28, 2008, etc.). B.
Based on such legal principles as to the recognition of the crime of deception and deception, in full view of the following reasons after closely examining the evidence duly adopted by the court below and the court below, it can be sufficiently recognized that the defendant deceivings the intent or ability of repayment at the time of the loan in this case, and that there was also the criminal intent of deception.
At the time of borrowing money from the victim, the Defendant owned ① Mapo-gu Seoul Metropolitan Government G Apartment 110-dong 301 (hereinafter referred to as the “Mapo apartment”) and ② Hapo-si along with H.