2015Do2844 Fraudulent

A

Defendant

Attorney AA (National Election)

Seoul Northern District Court Decision 2014No1335 Decided January 30, 2015

June 11, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged of the instant case is that the Defendant, even if he borrowed money from the victim, did not have the intent or ability to repay it from time, and around August 8, 2008, by deceiving the victim G to the effect that “A development project, such as real estate in Gangnam-gu, Seoul, is being carried out, and if the operating fund of KRW 100 million is lent, the principal will be paid at the interest rate of KRW 1.8 million every month and the principal will be repaid after three months.” The Defendant, who received KRW 100 million from the victim, received money from the victim

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which convicted the Defendant of the charges of this case on the ground that it is reasonable to recognize the fact that the Defendant, who has no ability to repay, promised to repay more than three months, and borrowed KRW 100 million (hereinafter referred to as "the loan of this case") was deceiving the victim, and it is reasonable to view that the Defendant had no ability to repay at the

2. Whether fraud is established through the deception of the borrowed money should be determined at the time of borrowing. Therefore, even if the defendant had the intent and ability to repay the borrowed money at the time of borrowing, if the defendant could not repay the borrowed money at the time of borrowing, this is merely a non-performance under civil law, and it cannot be said that a criminal fraud is established. Meanwhile, the subjective constituent elements of the crime of fraud should be determined by taking into account the objective circumstances such as the defendant's financial power before and after the crime, environment, details of the crime, the process of the transaction, the relationship with the victim, etc., unless the defendant makes a confession (see Supreme Court Decision 2008Do2893, Jun. 12, 2008).

3. Examining the reasoning and records of the lower judgment in accordance with the foregoing legal doctrine, the lower court’s determination is difficult to accept for the following reasons.

(1) The lower court determined that the Defendant did not have the ability to repay at the time of the instant loan.

However, according to the records, it is recognized that the Defendant jointly owned 1106 U.S. M. M. (hereinafter referred to as the “Defendant Company”) around the time of the instant loan, the Defendant owned 1106 U.S. M. M. (hereinafter referred to as the “Defendant Company”) with his wife, and the Defendant was unable to pay employee wages. However, it was difficult for the Defendant Company D (hereinafter referred to as the “Defendant Company”) to carry out financial circumstances, such as not paying employee wages, but did not have any other obligations. On the other hand, it was recognized that the Defendant was promoting a large investment attraction plan while carrying out the business of constructing and selling W building in Seodaemun-gu Seoul, Seodaemun-gu, Seoul, the business of constructing and selling W. On the other hand, it was not possible for the Defendant to provide financing using his wife or common property, or there was no evidence to deem that the Defendant Company had no possibility of success and possibility of attracting investment at the time of the instant loan.

In full view of the above circumstances, there is room to deem that the Defendant had the ability to repay the instant loan at the time of the instant loan, and even if the business promoted by the Defendant Company was insufficient to repay the said loan, it cannot be inferred that the Defendant did not have the ability to repay the loan at the time of the instant loan. Therefore, the lower court’s determination that the Defendant was unable to repay the loan at the time of the instant loan is difficult to accept.

(2) The lower court determined that the Defendant, who did not have the ability to repay, committed an act of deceptioning the victim even on the sole basis of the fact that the Defendant promised to repay three months after borrowing KRW 100 million.

However, as recognized earlier, it is difficult to view that the Defendant was incapable of paying the principal. According to the monetary loan agreement in relation to the instant loan between the Defendant and the victim, the lending period shall be up to three months from the borrowing date, but may be extended by agreement between the parties. In addition, according to the records, the Defendant has consistently paid the agreed interest of KRW 1.8 million over 12 times from September 2008 to August 2009, which is 12 times after the borrowing of the instant loan, and the victim seems to have not urged the repayment of the principal until the expiration of the reasonable period from the repayment date of the said loan. As such, the repayment period for three months at the time of the borrowing of the instant loan does not seem to have been treated as an important factor among the parties.

Furthermore, there is no evidence to acknowledge that the Defendant, at the time of borrowing the instant loan, knew of false facts about the content of the business carried out by the Defendant Company, the degree of progress, or the ability to repay the instant loan, or used it for any purpose other than the purpose of borrowing the instant loan. Therefore, it is difficult to view that the circumstance that the Defendant was unable to repay the loan within three months due to the circumstance that the Defendant was unable to pay the loan within the three months due,

(3) In addition, according to the records, the defendant became aware of the victim at a closed-class meeting around the mid-190s, and the victim had been in charge of the business consultation, resolution of civil complaints, loan mediation, etc. with the management consultation, loan mediation, etc. operated by the victim, who had been in charge of the management consultation, the management consultation, the settlement of civil complaints, and the loan mediation before the loan of this case, which is the representative director, and the defendant company entered into a contract for consultation on the borrowing of funds and investment attraction with the company in April 10, 2008. In such recognition facts, it is questionable whether the victim's husband lent the funds to the defendant for the real estate development business in the course of investigation or public trial, or the defendant stated to the effect that the defendant lent the funds to the same effect as the defendant was insufficient due to the relation with the defendant. It is also questionable whether the victim borrowed the loan of this case by mistake in the property status or ability of the defendant company.

(4) In full view of the above circumstances, it is difficult to view that the facts charged by the court below or the evidence presented by the prosecutor alone, which the defendant, by deceiving the victim without the intent and ability to repay the borrowed money at the time of the loan of this case, is proven without reasonable doubt.

(5) Nevertheless, the lower court found the Defendant guilty of the instant facts charged solely on the grounds as indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on fraud fraud or deception, or by recognizing facts beyond the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok