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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal is as follows: (a) the Defendant did not have the intent or ability to pay the money from the victim at the time of borrowing the money.
2. Determination of whether a crime of fraud is established is determined at the time of the act. As such, if a borrower has an intent and ability to repay money at the time of lending money in a loan for consumption, even if the borrower fails to repay 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, and the risk of delay in repayment or impossibility in repayment is anticipated or may be anticipated, due to the continuous transaction relationship, etc., such as the borrower's awareness of the credit standing of the lender, barring any other circumstances such as the borrower's expression of falsity as to material facts that may determine whether to grant a loan for consumption with respect to the detailed intent of repayment, ability to repay, conditions of loan, etc. at the time of the loan, the borrower deceivings the lender on his/her ability to repay 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). In addition to the following circumstances established by the lower court and recognized by the evidence duly adopted and investigated by the lower court, the lower court’s determination that the Defendant had no intent to commit fraud is justifiable, and there is no error of misunderstanding of facts.
① Since the Defendant notified the victim that there was a lack of money for raw materials at the time of borrowing money and that there was no money for personnel expenses, the victim seems to have been aware of the financial status of the Defendant.
(2) The borrowed name was financed by raw materials and personnel expenses, and the defendant borrowed.