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The defendant shall be innocent.
Reasons
1. On January 9, 2018, the Defendant of the facts charged, at a notarial office located in Do Government-si B on January 14, 2018, the Defendant falsely stated to the effect that “A notarial office located in Do-gu Seoul Metropolitan Government is operating a cafeteria, and the cafeteria is insufficient. It is insufficient to operate the cafeteria. It is KRW 5 million loaned to KRW 5 million as monthly rent of the cafeteria and operating expenses of the cafeteria.”
However, the defendant had no intention or ability to repay even if he borrowed five million won from the victim because he had been taking into account the bankruptcy petition due to a large amount of debt.
Nevertheless, on January 9, 2018, the Defendant, by deceiving the victim as above, was issued 250,000 won after deducting 4.755,00 won as a loan interest from the bank account (Account Number: D) in the name of the Defendant from the victim.
2. Determination
A. Determination of the establishment of a crime of fraud by defraudation of the borrowed money should be made at the time of borrowing. Thus, even if the defendant had the intent and ability to repay the borrowed money at the time of borrowing, if the defendant did not repay the borrowed money thereafter, this is merely a non-performance under civil law, and it cannot be said that a criminal fraud is established. Meanwhile, the existence of the criminal intent of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by taking full account of the objective circumstances such as the defendant's financial history, environment, contents of the crime, the process of performing
(See Supreme Court Decision 95Do3034 delivered on March 26, 1996). B.
According to the records, the fact that the defendant borrowed money from the victim at the time and place above is recognized.
However, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court, the evidence submitted by the prosecutor alone at the time of borrowing the defendant.