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The prosecutor's appeal is dismissed.
Reasons
1. Although the summary of the grounds for appeal (the fact-finding) fully recognizes the criminal intent of defraudation by the defendant, the court below found the defendant not guilty on the ground that it was not sufficiently proven that he had the criminal intent of defraudation by the defendant at the time of the instant case. Therefore, the court below erred by mistake of facts
2. Determination
A. On January 28, 2014, the Defendant, at around 14:00, received money from the victim for marriage as a loan, the Defendant acquired money from the victim for KRW 15 million from the victim, on the roads of Nonghyup, Daegu Northern-gu, Daegu-gu, Daegu-do, with approximately KRW 200 million. Even if the Defendant’s factory operation becomes worse due to the aggravation of management status, such as default of tax, etc., but did not have intent or ability to repay the money from the victim C, but the Defendant did not have intent or ability to repay the money.
B. As to the facts charged in this case, the lower court rendered a not guilty verdict on the grounds that detailed reasons were stated in Articles 2 and 3, 3, and 4, and 7.
C. Determination of the following facts and circumstances based on the legal principles and evidence duly adopted and examined at the lower court and the lower court, i.e., (i) the time of the act of fraud established. If the borrower had the intent and ability to repay money at the time of lending money in a loan for consumption transaction, even if the borrower did not repay money thereafter, such act is merely non-performance under civil law and does not constitute criminal fraud (see, e.g., Supreme Court Decision 2012Do14516, Apr. 2, 2016). The intent of defraudation, which is a subjective constituent element of the crime of fraud, is determined by comprehensively taking account of the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, the process of performing the transaction, and the relationship with the victim, unless the Defendant is led to the confession.