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서울북부지방법원 2017.08.11 2016노2194

사기

Text

The prosecutor's appeal is dismissed.

Reasons

1. The summary of the grounds for appeal is that the defendant has not yet repaid the borrowed money to the victim, and even though the defendant could sufficiently be recognized that he borrowed money from the victim without the intention of repayment or ability, the court below acquitted the defendant of the facts charged in this case. The court below erred by misunderstanding the facts and thereby affecting the conclusion of the judgment

2. Determination

A. In a criminal trial, the establishment of a crime ought to be based on strict evidence of probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent to have the aforementioned conviction, even if there is doubt of guilt, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal, it should be determined in the interests of the defendant (see Supreme Court Decision 2010Do1487, Apr. 28, 201). In addition, the determination of the establishment of a crime of fraud should be made at the time of such act, and it cannot be punished for fraud on the ground that the defendant’s default status due to changes in economic conditions after such act results in the nonperformance of obligation (see, e.g., Supreme Court Decision 2008Do5618, Sept. 25, 2008).

In full view of the above, it is difficult to readily conclude, and the fact that the Defendant appears to have used the above borrowed money for the purpose of paying transportation expenses, etc.