beta
Text
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 10,000,000.
The above fine shall not be paid by the defendant.
Reasons
1. Comprehensively taking account of the gist of the grounds for appeal (in fact-finding) and the statement and relevant evidence by the Defendant and the victim, the amount the Defendant received from the victim ought to be regarded as the borrowed money, not the investment, and even if the amount of investment was made, there was no intent or ability to have the Defendant receive landscaping construction as promised by the victim.
Therefore, the facts charged in this case should be pronounced guilty, and the judgment of the court below is erroneous in misconception of facts.
2. Judgment on the prosecutor's assertion of mistake of facts
A. The lower court found the Defendant not guilty of the facts charged in the instant case on the ground that it is difficult to readily conclude that the Defendant had no intention or ability to carry out business, even if the amount received from the victim was an investment loan, rather than a loan, and even if the amount was an investment loan, it is difficult to conclude that the Defendant
B. The judgment of the court below on the nature of the money that the defendant received from the victim was determined as follows. However, considering the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, the defendant is deemed to have borrowed money. (A) The defendant was paid KRW 33,00,000 to nine times from November 30, 2007 to January 8, 2018 by receiving KRW 33,00,000 from the victim.
① As long as the authenticity of a disposal document is recognized, it shall be interpreted that the parties expressed their intent in accordance with the content of the language and text stated in the disposal document, barring any special circumstance that would otherwise deny the probative value of the disposal document (see, e.g., Supreme Court Decision 2010Da58728, May 13, 201). (ii) The maturity date stated in the loan certificate drawn up nine times is the same and the victim is the same.