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The accused shall dismiss an application for compensation by the applicant for compensation of the acquitted;
Reasons
1. The Defendant, at the Defendant’s office located in Ansan-si around March 29, 2010, uses necessary funds as the commercial registration capital, and immediately withdraw and return the said funds when the commercial registration was completed for three days after the date of commercial registration.
"......"
However, even if the defendant establishes a corporation and completes the registration, he/she did not have any intent or ability to repay the money borrowed from the foundation fund.
Nevertheless, the Defendant, by deceiving the victim as above, received the remittance of KRW 43,590,334 from the victim.
2. Determination
A. The Defendant’s assertion that around September 2009, the Defendant lent KRW 62 million to E on the ground that E lacks the marriage funds of his children, and that the funds were needed to establish G after which the Defendant was paid KRW 43,590,334 out of the loans from E on March 29, 2010. As such, the Defendant’s assertion that the Defendant did not deceiving E and defraud KRW 43,590,334 from then borrowing KRW 43,59.
B. The intent of the crime of defraudation, which is a subjective constituent element of fraud, of general legal doctrine, is to be determined by comprehensively taking account of objective circumstances, such as the Defendant’s financial history, environment, details and content of the crime, and the process of transaction before and after the crime, insofar as the Defendant does not make a confession. Meanwhile, the recognition of guilt ought to be based on evidence with probative value to lead a judge to the conviction that the facts charged are true to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, even if there is suspicion of guilt against the Defendant, it is inevitable to determine it as the benefit of the Defendant. This also applies to the recognition
On the other hand, deception as an act of fraud does not necessarily require false indication on the important part of the juristic act.