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The defendant shall be innocent.
Reasons
1. The summary of the facts charged, around 14:00 on February 28, 201, the Defendant made a false statement to the victim D by phoneing the victim D in the street of Pyeongtaek-gun Office in Gyeonggi-do, stating, “I will immediately repay if you send KRW 20,000,000,000 to you need to find a permit for the construction of a mushroom plant in Pyeongtaek-gun E E., which is urgently needed to do so.”
However, the fact did not have the intention or ability to repay even if it borrowed money from the victim.
At around 16:35 of the same day, the Defendant received KRW 20 million from the victim to the national bank account under the name of the Defendant.
Accordingly, the defendant was given property by deceiving the victim.
2. Determination
A. The intent of defraudation, which is a subjective constituent element of the crime of fraud, is to be determined by comprehensively taking account of the objective circumstances, such as the financial history, environment, details and contents of the crime before and after the crime, and the process of transaction execution, unless the defendant is led to confession.
In addition, the conviction should be based on evidence of probative value, which leads a judge to have a conviction that the facts charged are true to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is doubt about the defendant's guilt, it should be determined with the benefit of the defendant. The same applies to the recognition of the criminal intent, which is a subjective element of fraud.
(1) In light of the legal principles as seen earlier, the crime of fraud is established at the time of borrowing. However, if the Defendant had the intent and ability to repay the borrowed money at the time of borrowing, even if the Defendant failed to repay the borrowed money thereafter, it is merely a civil non-performance of obligation, and it cannot be said that a criminal fraud is established.
(See Supreme Court Decision 2007Do10770 Decided February 14, 2008, etc.). B.
In this case, the Health Council and the Court are legitimate in this Court.