The judgment below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged in the instant case is as follows: “The Defendant, even though having no intent or ability to do so, shall conduct an assessment of the possibility of repayment of principal and interest by arranging the victim’s loan of KRW 450 billion to implement the enforcement project in the J project site, and requesting an external institution to prepare an assessment report to do so. The Defendant deceiving the victim as if he would bear KRW 80 million out of KRW 1 billion of the cost of preparing the assessment report, thereby deceiving the victim, thereby deceiving the victim.

“” is:

In regard to this, the court below, even though the defendant did not intend to evaluate the possibility of repaying the principal and interest by requesting an external institution to prepare an evaluation report, deceiving the victim and defrauding 200 million won.

The judgment of the court of first instance that acquitted the defendant is reversed and the charges are convicted.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. The intent of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the 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.

The conviction of a single part of the crime ought to be based on evidence with probative value that leads a judge to feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it is inevitable to determine the defendant's interest. The same applies to the recognition of a criminal intent, which is a subjective element of fraud (see, e.g., Supreme Court Decision 2015Do2255, Jul. 23, 2015). Meanwhile, in light of the fact that the appellate court has the nature of ex post facto deliberation and the spirit of substantial direct deliberation as provided in the Criminal Procedure Act, the first instance court examines evidence.