The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than five months.

except that the ruling shall be made for one year from the date of the final judgment.

1. Summary of grounds for appeal;

A. When a mistake of facts Defendant borrowed KRW 50 million from the victim on December 2005, F Co., Ltd. (hereinafter “F”) acquired by the Defendant at the time of borrowing KRW 50 million from the victim, the company was a company with an annual estimated annual sales amounting to approximately KRW 1 billion. In particular, the part of the judgment of the lower court on the determination of the Defendant and the defense counsel stated “H” as to the assertion of the Defendant and the defense counsel, which appears to be a simple clerical error

Around November 2004, from around March 2005 to about KRW 780 million, the court below convicted the defendant, despite the absence of the criminal intent of deception, on the ground that the defendant had sufficient ability to repay KRW 50 million to the victim. However, since the business of 2006, such as the sudden reduction of the text of the PO and the failure to repay KRW 50 million to the victim, the court below found the defendant guilty. The judgment of the court below erred by misapprehending the facts, which affected the conclusion of the judgment.

B. The sentence imposed by the lower court (five months of imprisonment) is too unreasonable.

2. Determination

A. 1) As to the assertion of mistake of facts, insofar as the criminal intent of defraudation, which is a subjective constituent element of the crime of fraud, has to be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of performing transactions before and after the crime, insofar as the Defendant does not make a confession, the criminal intent is sufficient not to be a conclusive intention but to do so (see, e.g., Supreme Court Decision 2008Do1697, Jun. 23, 2009). In addition, in a civil monetary lending relationship under the civil law, the criminal intent of defraudation of the borrowed money cannot be acknowledged with the fact of nonperformance, but if the Defendant borrowed money with the intent of making a full repayment or without the ability to make a repayment within the due date of repayment, the criminal intent of defraudation may be recognized (see, e.g., Supreme Court Decision 83Do1048, Aug. 23, 1983).