However, it cannot be said that there was an intention to commit the crime of defraudation by the defendant, since it was not possible to supply the second instance as the problem was not resolved differently from the expected one.

2. Determination

A. The intent of defraudation, which is a subjective constituent element of a crime of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the defendant’s financial history, environment, content of the crime, process of transaction, relationship with the victim, etc. before and after the crime, unless the defendant makes a confession.

The criminal intent of defraudation includes not only conclusive intention but also willful negligence, in case where it is recognized that the defendant knew of the possibility of default at the time of the conclusion of the contract or payment of money but also there is a considerable possibility of avoiding the situation of default, and in case it is recognized that there is an intention to endeavor to perform the contract in good faith, it shall not be determined that there is a criminal intention of deceptiveation. However, in such a case, at least the defendant must explain it, and in case there is only the defendant's assertion, and in case there is no specific vindication, it shall not be recognized that there is

B. Comprehensively taking account of the following facts revealed by the evidence duly admitted and examined by the lower court, the Defendant was well aware of the victim’s failure to perform the contract at the time of receiving the money from the victim, but there is considerable possibility to avoid the contractual failure.