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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal (definite and misunderstanding of legal principles) and the intent to acquire fraud related to the borrowed money and the price of goods is received or delivered without intent or ability to repay, and according to the evidence submitted, it is recognized that the defendant was unable to repay the borrowed money and the price of goods to the defendant at the time of borrowing or the prefinite transaction.
In addition, since the defendant did not notify the victim of such circumstances and stated that he would repay the borrowed money, etc. to the victim, the act of deception is also recognized.
Therefore, the criminal intent of the defendant in this case can be recognized.
Nevertheless, the court below rendered a not guilty verdict on the facts charged of this case on the grounds that the defendant had no intention to commit a crime by deceit, based on the circumstances stated in its reasoning. The court below erred by misapprehending the legal principles, or by misapprehending the
2. Determination
A. The intent of defraudation, which is a subjective constituent element of the relevant case’s crime of fraud, is to be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details and contents of the crime before and after the crime, and the process of transaction execution, unless the Defendant makes a confession. On the other hand, the conviction should be based on evidence with probative value that leads to the conviction that the facts charged are true to the extent that there is no reasonable doubt by the judge. Thus, if there is no such evidence, even if there is a doubt as to the Defendant’s guilt, it is inevitable to determine it as the benefit of the Defendant, and the same is also applicable
(See Supreme Court Decisions 2008Do11718 Decided April 9, 2009 and Supreme Court Decision 2004Do74 Decided May 14, 2004, etc.). B.
The lower court determined that: (a) the Defendant was supplied with active fishing in an amount of KRW 65 million from July 2009 to January 201, 2012 by the victim; and (b) the instant active fishing price.