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The judgment below
The remainder (excluding the part not guilty) of the compensation order shall be reversed.
Defendant .
Reasons
Summary of Grounds for Appeal
The defendant of misunderstanding facts determined that a PF loan will be made at the time of borrowing KRW 210 million from the victim C, and that even if the loan is not made, the J thought that the actual manager of the D Co., Ltd will settle the debt, so even though he did not have any intention to commit fraud, the judgment of the court below which convicted the defendant, which found the defendant guilty, is erroneous in the misconception of the fact and affected the conclusion of the judgment.
The sentence of unfair sentencing (one year and six months of imprisonment) by the lower court is too unreasonable.
Judgment
As to the assertion of misunderstanding of facts, the criminal intent of defraudation, which is a subjective constituent element of the crime, shall not be determined by comprehensively taking into account the objective circumstances such as the financial history, environment, details and contents of the crime before and after the crime, and the process of transaction execution, etc.
(See Supreme Court Decision 2008Do11718 Decided April 9, 2009, etc.). According to the evidence duly adopted and examined by the court below, part of lending institutions at the time when the defendant borrowed money from the victim was issued to D Co., Ltd. with a letter of intent to handle loans, and L is recognized as having issued a letter of intent to participate in construction on June 8, 2006 after the defendant borrowed the above money.
In this regard, the Defendant asserted that the lending institution did not issue the “documents promising to lend or guarantee the payment” beyond the “written intent” of either the lending institution or the construction company, but even based on the aforementioned evidence, since the lending institution did not guarantee the payment of the construction until the time of the loan, and the lending institution did not clearly express its intent of the loan, the possibility of the lending of the PF to D Co., Ltd is uncertain. In fact, it should be viewed that the granting of the payment guarantee is uncertain.