beta
Text
The prosecutor's appeal is dismissed.
An application for compensation by an applicant for compensation shall be dismissed.
Reasons
1. The summary of the grounds of appeal (In fact-finding assertion) is acknowledged in light of the following: (a) the Defendant, at the time of borrowing money from the victims, was liable for a debt of approximately KRW 150 million; (b) the Defendant used most of the money borrowed from the victims as living expenses and interest on other obligations; and (c) the victims failed to repay most of the borrowed money; (d) there is no evidence to prove the existence of the Defendant’s claim against the Dong M; and (e) there is no evidence to support the Defendant’s claim that KRW 100 million exists; and (b) there is no material to deem that the Defendant’s husbandO’s income is freely usable; and (c) there is no material to deem that there was any property or income from the O at the time. In light of the above, it is recognized that the Defendant acquired money from the victims under the pretext of the borrowed money
2. The establishment of a crime of fraud through the defraudation of the borrowed money should be determined at the time of borrowing. Therefore, if the defendant had the intent and ability to repay at the time of borrowing, he/she could not repay the money after any change in circumstances
Even if it is not just a simple non-performance of civil liability, it can not be said that criminal fraud is established.
On the other hand, unless the defendant makes a confession, the existence of the crime of defraudation, which is a subjective constituent element of the crime, shall be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, contents of the crime, process of transaction, relationship with the victim, etc.
(see, e.g., Supreme Court Decision 95Do3034, Mar. 26, 1996). Comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted and investigated by the court below, the Defendant was obligated to pay approximately KRW 150 million to the victims at the time of borrowing money from the victims.