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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1) Inasmuch as the amount paid by the victim of mistake of facts under the pretext of a deposit and loan to the Defendant is KRW 89,266,00 in total, the amount paid by the Defendant to the victim from around December 2012, the Defendant did not incur any property loss incurred by the victim due to reaching KRW 102,810,000 in total, and there was an intention or ability to repay the borrowed money and there was an intention or ability to repay the borrowed money. (ii) The Defendant was punished in other cases related to the borrowed money. In light of the purport of Article 39(1) of the Criminal Act, the lower court’s punishment (two months of imprisonment) is too unreasonable.
B. In light of the fact that there is no light that there is no penure, such as denying the criminal intent by deceiving a victim in a planned manner by deceiving him/her with a large amount of money, and that the damage is not completely caused, the lower court’s punishment is too unfeasible.
2. Determination
A. The crime of fraud is established in the event that a judgment on the fraud of the first limit of payment amount in the determination of the mistake of facts is highly likely to not be paid when the normal operation of the fraternity is difficult, and the victim was subscribed to the fraternity, thereby receiving the payment from the victim, even if the victim was paid a considerable amount of money, it is merely a circumstance after the crime, and thus does not affect the establishment of fraud.
According to the evidence duly admitted and examined by the court below, the defendant, at the time of receiving the payment from the victim, suffered difficulties in operating the fraternity as much as the situation did not change even though most of the personal funds were invested in the fraternity that he accepted and operated, and immediately after borrowing a large amount of funds from H as stated in the crime of fraud which became final and conclusive.