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The prosecutor's appeal is dismissed.
Reasons
1. According to each of the statements by E, F, and G, as stated in the instant facts charged, the Defendant, via E, concluded that “If the registration of the establishment of the establishment of the neighboring forest land of 15,939 square meters (hereinafter “instant land”) is terminated, the Defendant would return the loan amount of KRW 60 million, which is the secured debt, to F, as if the registration of the establishment of the establishment of the neighboring forest of 15,939 square meters (hereinafter “instant land”) was cancelled, as stated in the instant facts charged, the Defendant would have F cancel the registration of the establishment of the neighboring forest.”
2. Determination
A. On March 15, 2010, the summary of the facts charged: (a) the Defendant asked F to borrow money from the first patrolman D; and (b) through E to “F to pay KRW 90 million, including interest, if he/she lends KRW 60 million; (c) he/she was transferred from F to H’s account; (d) on March 15, 2010, he/she was transferred from the G’s account to H’s account; and (e) on March 15, 2010, the Defendant used the instant land owned D as collateral, which was the debtor D, the mortgagee, the F, and the maximum debt amount of KRW 10 million (hereinafter “the creation registration of the instant neighboring land”). However, around March 17, 2010, the Defendant took advantage of the Defendant’s personal debt, etc. with the foregoing KRW 60 million.”
When the Defendant requested D to cancel the registration of cancellation of the registration of the establishment of the above neighboring mortgage, the Defendant stated that “F will return KRW 60 million on the face of the termination of the neighboring mortgage” through E on March 29, 2010.
However, the Defendant used 60 million won transferred as above for the Defendant’s repayment of the Defendant’s personal obligation, and the Defendant did not have any special income or property at the time. Therefore, even if F cancels the registration of the establishment of the above mortgage, there was no intention or ability to return 60 million won as promised to F even if F cancels the said registration of the establishment of a mortgage.
On March 30, 2010, the Defendant had F registered the establishment of the above mortgage on March 30, 201.