The defendant's appeal is dismissed.

1. The summary of the grounds for appeal (the factual error) is the fact that the defendant borrowed money as stated in the facts charged of this case from the victim. However, the court below found the defendant guilty of the facts charged of this case despite difficulties in finding that the defendant had the intent to acquire money through deception as to the above borrowed money in light of the fact that the defendant was engaged in credit business and entertainment tavern at the time of the loan of this case and paid interest to the victim for a considerable period of time. The court below erred by misapprehending the facts

2. Determination

A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, shall 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 intent of the crime is not a conclusive intention but a dolu

(see, e.g., Supreme Court Decision 2008Do1697, Jun. 23, 2009). In addition, in a civil monetary lending relationship, the criminal intent of defraudation of the borrowed money can not be acknowledged with the default of obligation. However, in a case where the defendant borrowed money by pretending that he will repay the money in spite of the absence of the intention of full repayment or the absence of the ability to repay within the due date as agreed upon by the loan, the criminal intent of defraudation can

(See Supreme Court Decision 83Do1048 delivered on August 23, 1983). B.

The following circumstances acknowledged by the evidence duly admitted and adopted by the lower court, namely, ① the Defendant did not own property in its name at the time of borrowing money from the victim and was liable to pay approximately KRW 50 million to the financial institution. ② Nevertheless, the Defendant borrowed money from the Defendant each by stating that “the Defendant would be able to use money only for a short period of 1 to 2 months,” or that “the Defendant would set up a security deposit for entertainment bars and facilities as security.”