The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Although it is consistent with the fact that the Defendant did not repay money from the victim, the Defendant was planning to pay the victim the borrowed money with the purchase money after selling the forest E in Busan City, and thus, the Defendant was also sufficiently able to pay the borrowed money as well as to pay it.

However, the lower court erred by misapprehending the fact that the lower court found the Defendant guilty of the instant facts charged, thereby adversely affecting the conclusion of the judgment.

B. The punishment sentenced by the lower court (an amount of KRW 3 million) is too unreasonable.

2. Determination

A. Judgment on the assertion of mistake of facts 1) The criminal intent of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, details of the crime and the process of performing transactions before and after the crime unless the defendant makes a confession. The criminal intent is not definite intention but dolusive intent (see, e.g., Supreme Court Decision 2007Do10416, Feb. 28, 2008). In a civil monetary lending relationship under the civil law, it is impossible to recognize the criminal intent of defraudation of the borrowed money with the fact of default. However, if the defendant borrowed money by pretending that the defendant would have no intention to make a clear change or would have no ability to make a repayment within the due date of payment of the borrowed money, the criminal intent of defraudation can be recognized (see, e.g., Supreme Court Decision 83Do1048, Aug. 23, 1983). 202>

① On April 29, 2010, the Defendant purchased forest land of this case in KRW 1 million and completed the registration of transfer of ownership on May 10, 2010.