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The defendant's appeal is dismissed.
Reasons
1. On December 2014, the Defendant invested KRW 280,000,000 around 280,000 in order to import gold in Africa, and actually entered into a gold sales contract on January 13, 2015, but failed to perform its business due to a change in the contractual terms on the part of Kenya.
Even if it was not a business, the Defendant was able to pay the amount of money borrowed from the victim because he received a high-amount of income from his job as a life insurance company.
The fact of the 2nd fraud in the decision of the original court is that the defendant actually completed the preparation, such as returning the gold sales agent to Korea with the money borrowed from the damaged party, and the actual gold 200 km arrive at this time, but the other party to the contract unilaterally requested the change of the terms and conditions of the contract, etc.
Even if it was not a business, the defendant's income was sufficient to repay the money borrowed from the victim.
2. Determination
A. The following circumstances are revealed by comprehensively taking account of the evidence duly examined by the court below as to the fraud of Paragraph 1 of the judgment below, i.e., the defendant was proceeding with the business of importing the Kenya at the time, as alleged by the defendant.
However, according to the contract (No. 3) submitted by the Defendant, the contract on the gold flag was concluded on January 13, 2015 at the night. Thus, according to the international trade practice, the Defendant could have repaid the borrowed money by realizing the profits from the gold flag revenue up to January 20, 2015, which is the due date for payment promised by the Defendant.
It is difficult to see ② also that the Defendant obtained income as an insurance designer.
In light of the fact that from May 2015 to August 2015, there was no substantial amount of money to be disposed of due to attachment, etc., and that a certain amount of money was remitted to the victim from the victim to the point of time on August 2015, even if the Defendant borrowed money from the victim, it is on the date of the agreement.