The defendant's appeal is dismissed.

1. The summary of the grounds for appeal (fact-finding) ① A merely borrowed the instant money from the victim and paid the Defendant as part of the corporate acquisition price, and the Defendant did not borrow money from the victim.

② Even if the Defendant borrowed the instant money, the Defendant did not have any intent or ability to repay the borrowed money, as the Defendant provided sufficient collateral to the victim.

2. Determination

A. In borrowing money from another person, if the other party has failed to comply with the true notice about the purpose of the borrowed money or the method of raising funds to repay, and if the money has been received by notifying the other party of the fact contrary to the truth as to the purpose of the borrowed money or the method of raising funds to repay, the crime of fraud is established. In this case, the conclusion does not change solely on the ground that the security for the borrowed money was provided to

B. (See, e.g., Supreme Court Decision 2003Do5382, Sept. 15, 2005).

The following circumstances are acknowledged based on the evidence duly adopted and examined by the court below, i.e., (i) the Defendant and the victim concluded a mortgage contract on the instant land two occasions, and there was no E in the form where the Defendant prepared a certificate of loan, a statement of confirmation, and a statement of payment, etc.; (ii) the victim paid the Defendant the remainder of the borrowed principal plus the amount of KRW 64 million deducted from the advance interest of KRW 400 million. If E borrowed the above KRW 400 million from the victim, the Defendant does not assert that the principal borrowed from the victim is KRW 36 million.

When considering that there is no reason for the defendant to pay interest on the above borrowed money, the court below borrowed the instant money from the victim, and at the time the defendant borrowed it.