A. Although the defendant received 50 million won from the victim by mistake of facts or misapprehension of legal principles, there was no deception of the victim as stated in the facts charged in the instant case, and there was no intention to commit the crime of defraudation.

B. The lower court’s sentence of unreasonable sentencing (ten months of imprisonment) is too unreasonable.

2. Determination

A. Judgment on the misunderstanding of facts can only be made by comprehensively taking account of the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of performing transactions before and after the crime unless the Defendant confessions (see, e.g., Supreme Court Decision 95Do424, Apr. 25, 1995). If, in borrowing money from another person, if the other party did not respond to the true notice of the purpose of the borrowed money or the method of raising funds to be repaid, the crime of fraud is established if the money was received by notifying the other party of the fact that it would go against the truth regarding the purpose of the borrowed money or the method of raising funds to be repaid (see, e.g., Supreme Court Decision 2003Do5382, Sept. 15, 2005). < Amended by Presidential Decree No. 19094, Nov. 17, 2009>