The prosecutor's appeal is dismissed.

1. According to the evidence submitted by the prosecutor, even though it is sufficiently recognized that the defendant had a criminal intent to obtain fraud, the judgment of the court below which acquitted the defendant of the crime of fraud is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

2. Determination

A. On December 29, 2009, the Defendant made a false statement in the charge that “D’s construction site located in Jincheon-gun, Chungcheongnamcheon-gun, Chungcheongnam-do, D” to the victim E at the site of “D’s construction work,” stating that “D’s construction work should be carried out during the foregoing construction.” The Defendant made a false statement to the victim that the C would immediately pay the rent after the C’s lease.

However, the defendant did not have the intention or ability to pay the rent even if the defendant entered into a rental agreement which is a heavy equipment to be used at the construction site because there is no special property or income.

As such, the Defendant: (a) by deceiving the victim; and (b) by deceiving the victim, the victim from December 29, 2009 to February 17, 2010, leased and used the cream over a total of 16 occasions; and (c) did not pay the rent of KRW 7.3 million; and (d) acquired pecuniary benefits equivalent to the said amount.

B. The lower court’s judgment should be determined by comprehensively taking account of the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, and the process of performing transaction, unless the Defendant is led to the crime of defraudation, which is a subjective constituent element of the crime of fraud (see, e.g., Supreme Court Decision 97Do2630, Jan. 20, 198). Since a merchant engaged in the construction business requests for the lease of equipment in relation to his/her own business and in response, the transaction in which another merchant leases equipment for his/her own business is ordinarily taking place between the merchants of the construction business sector, the risks of not paying the price due to the lack of good performance of the construction business are always inherent in this transaction. Therefore, a merchant who leases the equipment.