The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the grounds for appeal (in fact-finding and inappropriate sentencing) has no fact of deceiving the victim of the purpose and ability of repayment and intent of repayment at the time of borrowing money.

Even if the crime of fraud is established against the defendant, the punishment of the court below (one year of imprisonment and two years of suspended execution) is too unreasonable in light of the fact that the defendant agreed with the victim.

2. Determination

A. On October 16, 2015, the summary of the facts charged in the instant case stated that “Around October 16, 2015, the Defendant would pay the victim D KRW 158 million after a week by adding the interest rate of KRW 50 million to KRW 180 million if the Defendant borrowed KRW 180 million.”

However, in fact, although the defendant needs to raise funds of KRW 6.9 billion in order to purchase the above building, there was no specific plan to raise funds to repay borrowed funds to the victim as well as there was no intention or ability to pay the principal to the victim on the date of the promise.

The Defendant, as above, by deceiving the victim, received KRW 18 million from the victim to the bank account in the name of the F as designated by the Defendant on the same day.

B. Determination as to the establishment of a crime of fraud by acquiring one borrowed money should be made at the time of borrowing. Therefore, if the defendant had the intent and ability to repay at the time of borrowing, even if it is impossible to repay the borrowed money due to changes in economic conditions thereafter, this is merely a non-performance under civil law, and it cannot be said that a criminal fraud is established.

Therefore, the lender recognizes the credit standing of the borrower in the loan for consumption by the relationship between the lender and the borrower as well as the continuous transaction relationship.