The prosecutor's appeal is dismissed.

1. The victims of the gist of the prosecutor’s appeal are investment under the expectation that the benefit structure of “D”, a specialized school at education, continues to exist in black and expand the size of the private teaching institute by using the investment funds to establish a new school.

Unlike this, if the defendant knew that the management status of the private teaching institute of this case was insufficient, he would not make an investment if he knew that the defendant would appropriate the investment funds to the existing operating expenses of the private teaching institute or to recover the personal investment funds of the defendant.

According to this, the judgment of the court below which acquitted the defendant while recognizing the defendant's intention of deception and deception.

2. Determination

A. The intent of the crime of fraud, which is a subjective element of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, content of the crime, process of transaction, and relationship with the victim, unless the Defendant makes a confession (see Supreme Court Decision 2004Do3515, Dec. 10, 2004, etc.). Whether the crime of fraud is established shall be determined at the time of the act, and it shall not be punished for fraud on the ground that the Defendant’s non-performance status may result in a change in economic circumstances after the act, etc. (see Supreme Court Decision 2008Do5618, Sept. 25, 2008, etc.). Since the recognition of conviction should be based on evidence with probative value that leads to the judge to have a conviction that there is no reasonable doubt that the facts charged are true, even if there is no such evidence, even if there is no doubt about the Defendant’s guilt, it shall not be a subjective element of the crime of fraud (see, 2004Do54, etc.).

B. The lower court.