The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal (the factual error) stated that the Defendant was not able to repay the money to the victim E within the date promised at the time of the prosecutor’s investigation, and that the Defendant left the U.S. without having contact with the K who requested the loan. Therefore, it should be deemed that the Defendant did not have any intention to repay and any ability to repay the money. Therefore, the Defendant ought to be deemed to have had

2. The following circumstances revealed by the court below's detailed decision are as follows: ① although the defendant is unable to repay the borrowed money to E until now, this is because the defendant left the U.S. around April 2008 and immediately arrested and detained the defendant who returned to the Republic of Korea, and failed to properly manage the real estate owned by the defendant; ② The bankruptcy procedure is being in progress; ② the establishment of fraud by the defraudation of borrowed money shall be determined at the time of borrowing; ② around March 2008, the loan money of this case shall be relatively small amount of KRW 4.5 million, considering the defendant's financial status around March 2008, the loan money of this case shall be relatively small amount of money; ③ Since the defendant was aware of the loan money of this case, and there is no evidence to acknowledge that the defendant sold the money to a third party at the time of borrowing the loan of this case, it is hard to conclude that the court below did not have any legitimate intent or ability to mistake facts from E at the time of borrowing.

3. In conclusion, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act as it is without merit. It is so decided as per Disposition.

However, the fourth below of the judgment of the court below shall be eight.