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The prosecutor's appeal is dismissed.
Reasons
Summary of Grounds for Appeal
Although the defendant borrowed 10 million won to the victim C without ability to repay, the court below judged that the defendant was not guilty by the testimony of D or F, a witness on the part of the defendant, and sentenced the defendant not guilty. Thus, the court below erred by misunderstanding of facts or misunderstanding of legal principles.
Around November 17, 2011, the Defendant made a false statement to the effect that “Around November 17, 2011, the Defendant borrowed KRW 10,000,000,00,000 to the victim C, who will make the line to work in the Chungcheong voice, with the same construction.”
However, the defendant did not have the ability to carry out the construction of the Chungcheong voice, and there was no intention or ability to repay the amount of KRW 10,000,000 from the victim due to the lack of property at that time.
Nevertheless, the Defendant, by deceiving the victim as above, was issued a cashier’s check that constitutes a face value of 10,000,000 from the victim’s seat.
Judgment
The intent of the crime of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, details and details of the crime before and after the crime, and the process of transaction execution, insofar as the Defendant does not make a confession (see, e.g., Supreme Court Decision 94Do2048, Oct. 21, 1994). Meanwhile, 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. Therefore, if there is no such evidence, even if there is doubt that the Defendant is guilty, it is inevitable to determine the benefit of the Defendant, and this is also the same in case of recognizing
(see, e.g., Supreme Court Decision 2004Do74, May 14, 2004). Evidence submitted to the court below and recognized by the records of this case.