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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Under the condition that the Defendant would repay one week, the Defendant borrowed 5 million won from the victim and failed to repay it. However, at the time, the Defendant borrowed 5 million won in order to newly build the interior of the restaurant operated in the name of M rather than the expense for opening the restaurant. At the time of borrowing 5 million won, the Defendant owned 6576 square meters of the city in Changwon-si, Changwon-si (hereinafter “the forest of this case”) at the time of borrowing 5 million won, and the Defendant was in possession of 6576 square meters of the city in Changwon-si, Changwon-si (hereinafter “the forest of this case”), which was operated in the name of M, with a lease deposit claim of 20 million won for the restaurant operated in the name of M, and was unable to repay 80 million won, but the Defendant was unable to repay 5 million won due to the impossibility of operating the restaurant of this case, and the lower court erred by misapprehending the facts that affected the conclusion of the judgment.
B. The Defendant asserts that the sentence imposed by the lower court (a fine of three million won) is too unreasonable.
2. Judgment on the assertion of mistake of facts
A. The intent of defraudation, which is a subjective constituent element of the relevant legal fraud, is to be determined by comprehensively taking account of the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, and the process of transaction before and after the crime, insofar as the Defendant does not make a confession. The intent of the crime is sufficient not to have a conclusive intention but to have dolusence
(see, e.g., Supreme Court Decision 2007Do10416, Feb. 28, 2008). In addition, in a civil monetary lending relationship, the criminal intent of defraudation of the borrowed money can not be acknowledged with the fact of nonperformance. However, in a case where the defendant borrowed money by pretending to repay money as if the defendant did not have the intention of full repayment or did not have the ability to repay within the due date as agreed upon, the criminal intent of defraudation can be recognized.
(See Supreme Court Decision 83Do1048 delivered on August 23, 1983). B.
(e).