The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

However, the above punishment shall be imposed for three years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Since misunderstanding of facts and misunderstanding of legal principles have provided sufficient security to F at the time when the defendant received 600 million won from F, it is recognized that the defendant had the intention and ability to repay.

Therefore, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in misconception of facts and misapprehension of legal principles concerning the intent and

B. The lower court’s sentencing on the Defendant of unreasonable sentencing (three years of imprisonment) is too unreasonable.

2. Determination

A. In the trial of the defendant's assertion of mistake of facts and misapprehension of legal principles, the defendant's assertion that "the defendant borrowed money from the victim" unlike the investigative agency and the court below, is virtually withdrawn, and the defendant has the intention and ability to repay to the defendant, and thus, it is not possible to recognize the criminal intent of defraudation.

Therefore, the following is the priority of the defendant's argument in the trial from a new point of view.

However, there is still a meaningful issue as to whether the Defendant and the victim agreed to set up a second priority mortgage with the victim and to sell real estate within two months and to repay the principal and interest, and whether the Defendant committed such a promise, and it should also be determined accordingly. The judgment of the court below is invoked as it is.

1) In a case where the money is borrowed as if it were to be repaid at the time although there is no reliable intent of repayment in the civil monetary lending and lending relationship or there is no ability to repay on the repayment date with respect to the standard for determining whether to recognize the crime of defraudation, the criminal intent of defraudation may be recognized (see, e.g., Supreme Court Decisions 87Do1605, Sept. 22, 1987; 97Do497, May 16, 1997). The criminal intent of defraudation, which is a constituent element of the crime of fraud, is the refeasible, environment of the criminal defendant before and after the crime unless the criminal defendant is led to confession.