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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal by the defense counsel;
A. In borrowing money from the victim, there is no fact that there was a limitation on the use of the money by purchasing trees, or there was no limitation on the method of repayment that the Defendant would make repayment by purchasing trees in cash. Therefore, the Defendant shall not be deemed to have deceiving the victim.
In addition, the Defendant was willing to complete the construction project that was in progress at the time and to receive the payment for the completed portion and to repay the borrowed amount to the victim, so there was the intention to repay and the ability to repay.
Nevertheless, the lower court erred by misapprehending the facts, thereby finding the Defendant guilty of the facts charged.
B. In light of the fact that the Defendant has no record of being punished for the same crime, the Defendant, along with G, acquired M Co., Ltd. (hereinafter “M”), and operated the trade name by changing it to F Co., Ltd. (hereinafter “F”), and the existing creditors with respect to M have given up the construction work while seizing Party F’s own F’s credit, leading to the instant crime. There are circumstances to take into account the circumstances, the Defendant’s spouse and children should support the Defendant, and efforts for the recovery of damage, etc., the lower court’s sentence that sentenced ten months to imprisonment is too unreasonable.
2. Determination
A. In full view of the following circumstances that can be recognized by the evidence duly adopted and investigated by the lower court as to the assertion of mistake of facts or misapprehension of legal doctrine, the fact that the Defendant deceivings the victim as stated in the facts charged and acquired KRW 100 million by deceiving the victim.
(1) The defendant is entitled to pay high profits if he/she purchases trees in cash from the victim by an investigative agency and performs landscaping works, and if he/she lends KRW 100 million with the purchase fund of trees, 7% per annum shall be paid, and the principal shall be paid after completion on or before July 15, 2013.