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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.
Reasons
1. The summary of the grounds for appeal is erroneous in the misapprehension of the judgment below, since the defendant deceivings the use of the loan money to be used as a waterway for the owner of the construction project and acquired 20 million won from the victim, and thereby acquitted the defendant.
2. Determination
A. On August 7, 2011, the Defendant was transferred KRW 20 million from the victim on September 7, 201, on the following grounds: (a) on the first floor of the Seo-gu Seo-gu Seoul Building, the Defendant did not intend to use the money for the owner of the construction, even if he/she borrowed money from the victim D; and (b) notwithstanding the absence of the intent or ability to repay the borrowed money, the Defendant could receive the payment from the victim if he/she had a right to receive money from the owner of the construction, because he/she is currently under influence by the landscape industry; and (c) he/she could receive the payment from the victim.
B. The lower court determined: (a) the victim voluntarily stated that “the Defendant did not specifically specify the other party to pay money in the name of the contract for construction work”; (b) the Defendant and the victim came to know to a certain extent that they were aware of the business operation situation of each other, such as preparing a written estimate for construction work on behalf of the victim and participating in the execution of the contracted landscaping work; (c) the victim did not have to have any special repayment plan disclosed; and (d) the Defendant stated that he had no choice but to have made a statement that he had an unbrupted mind about the instant complaint when considering the relationship with the Defendant; (e) the Defendant used the above 20 million won borrowed money for the repayment of the borrowed money in the name of the office operating expenses; and (v) the victim took part in the landscaping work that was contracted by the Defendant and operated on April 23, 2012.