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The appeal is dismissed.
Reasons
The grounds of appeal are examined.
The existence 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 financial history, environment, contents of the crime, process of transaction, relationship with the victim, etc. before and after the crime, unless the defendant makes a confession.
(See Supreme Court Decision 2008Do11718 Decided April 9, 2009). Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and the probative value of evidence, which is based on the premise of fact finding, belong to the free judgment of the fact-finding court.
(Article 308 of the Criminal Procedure Act). Based on the facts stated in its reasoning, the lower court reversed the first instance judgment that acquitted the Defendant, and found the Defendant guilty, on the grounds that the Defendant, as stated in its judgment, knew the ownership of a collateral without the intent and capacity of repayment, by deceiving the Defendant to acquire KRW 100
The allegation in the grounds of appeal disputing such determination by the lower court is merely an error of the lower court’s determination on evidence selection and probative value belonging to the free judgment by the fact-finding court, and even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by failing to exhaust all necessary deliberations,
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.