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창원지방법원 2018.05.31 2018노474
사기
Text

Part of the judgment of the court below excluding the costs of lawsuit shall be reversed.

A defendant shall be punished by imprisonment for four months.

except that this shall not apply.

Reasons

1. Summary of grounds for appeal;

A. In fact, the Defendant had no intent and ability to repay the borrowed amount of the instant loan because the G Center was decided to sell the G Center to F among the newspaper distribution facility businesses operated at the time of the instant case, and the Defendant was able to repay the borrowed amount.

The judgment of the court below that recognized the criminal intent of defraudation to the defendant is erroneous in fact.

B. The sentence of the lower court’s improper sentencing (4 months of imprisonment) is too unreasonable.

2. Determination

A. In full view of the following circumstances acknowledged by the lower court’s judgment and the evidence duly admitted and investigated by the first instance court as to the assertion of mistake of facts, the lower court’s determination is justifiable that the Defendant borrowed KRW 25 million from the damaged person’s criminal intent without intent and ability to repay the borrowed amount. In so doing, the lower court did not err by misapprehending the facts as alleged by the Defendant.

① On May 30, 2016, the Defendant, as stated in the judgment of the lower court, is expected to complete the payment immediately with the victim upon receiving the lease deposit after the completion inspection, if he/she constructs a building and lends the expenses for the inspection of completion of the building.

“Around May 30, 2016, the Plaintiff borrowed KRW 20 million from the injured party, and KRW 5 million on May 31, 2016.

② The victim appeared as a witness in the court of original instance and did not lend money to the Defendant if he did not repay the Defendant’s debt with a security deposit after the completion of the building, but did not lend the money to the Defendant.

“The statement was made”.

③ On March 3, 2016, the Defendant purchased the Defendant’s studio building in a new construction with D and established a plan to rent the remainder of the nine rooms. However, around May 2016, the Defendant decided to purchase one of the studio rooms from among the studio buildings for the purpose of residing. As such, even if the studio was borrowed from the damaged party around May 30, 2016, the Defendant could not repay the said loan with the deposit for the building.

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