A. misunderstanding of facts and misunderstanding of legal principles, the victim was well aware of the fact that the defendant was the victim, the economic situation, credit standing, and the ability to repay.

The defendant did not deceiving the victim about his/her ability to repay, nor did he/she have acquired the victim by fraud.

Therefore, the judgment of the court below convicting the facts charged of this case is erroneous in misconception of facts and misapprehension of legal principles.

B. The sentence imposed by the lower court (six months of imprisonment, two years of suspended execution, two years of community service, 120 hours of imprisonment) is too unreasonable.

2. Determination

A. Determination of mistake of facts and misapprehension of legal principles is made at the time of the establishment of a crime of fraud. Therefore, if the borrower has the intent and ability to repay the money at the time of lending the money in a loan for consumption, even if the borrower did not repay the money thereafter, this is merely a non-performance under civil law, and a criminal fraud is not established.

Therefore, in a loan for consumption, in cases where the lender was aware of the credit standing of the lender and the borrower in a loan for consumption, and the risk of delay in repayment or impossibility of repayment is anticipated or may be anticipated, due to the continuous transaction relationship between the lender and the lender, etc., unless there are other circumstances, such as the borrower made a false statement of material facts that could determine whether to grant a loan for consumption with respect to the detailed intent of repayment, ability to repay, terms and conditions of loan, etc. at the time of the loan, the borrower deceivings the lender on his/her ability to repay the loan with the sole fact that the borrower

shall not be readily concluded that there is a criminal intent to obtain fraud from the borrower.

(see, e.g., Supreme Court Decision 2012Do14516, Apr. 28, 2016). The criminal intent of defraudation, which is a subjective constituent element of a crime, is the financial history, environment, and crime of the accused before and after the crime, unless the accused makes a confession.