2. Determination

A. The summary of the facts charged is that the Defendant was the owner of the first floor and the third floor above the ground (hereinafter “instant commercial building”). On March 18, 2003, the Defendant: (a) the instant commercial building was a collateral trust on the New Real Estate Trust Co., Ltd. (hereinafter “New Real Estate Trust”); and (b) the instant commercial building was changed to the disposal trust on June 28, 2006.

On August 2, 2013, the Defendant told the victim D to the effect that “I will receive an appraisal of the agreed amount of KRW 50,000,000 won on the first floor and third floor above the ground, E E, and will receive a loan from a financial institution to purchase the above commercial building in KRW 7.5 billion.”

However, in fact, from the 6th floor to the 3th floor above the ground including the instant commercial building, the public auction was conducted on February 2009, but the final bid price was less than 5.994 billion won, and the instant commercial building was located on the side and was not activated, so there was no possibility of receiving an appraisal of 18 billion won.

Therefore, even if the defendant received the agreed amount from the injured party, he did not have the intent or ability to receive the appraisal and to have the ownership transferred with the loan from the financial institution.

Nevertheless, the defendant deceivings the victim as above and received a copy of the check from the victim himself as the contract deposit for real estate sale and purchase.

B. The lower court’s judgment held that the criminal intent of defraudation, which is a subjective constituent element of fraud, is so long as the Defendant does not confession.