The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. In fact, the Defendant did not defraud the victim by deceiving him without any intention or ability to pay the fraternity money from the beginning, and did not pay the remaining fraternity money through the closure of the shop shop and the operation of the womb disease that was operated while paying the fraternity money from the beginning. Therefore, the Defendant did not have the intention to acquire the money by deception.

However, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous by misunderstanding the facts and affecting the conclusion of the judgment.

B. The sentence sentenced by the lower court to the Defendant (an amount of four million won) is too unreasonable.

2. Determination

A. Determination on the assertion of mistake of facts 1) If a person has a continuous monetary transaction or a lending and borrowing relationship and fails to perform his/her obligation on the grounds of temporary cash-raising, etc., it cannot be readily concluded that the act of the person who borrowed the money alone was derived from the crime of defraudation. In addition, the crime of fraud cannot be established merely because the person who borrowed the money merely did not notify the true purpose of the borrowed money in the lending merely because he/she did not notify the true purpose of the lending. However, even though the defendant had a very doubtful circumstance that he/she had the ability or intent to perform repayment due to cumulative excess debts, he/she borrowed money to the victim with the concealment of such fact, and if it is recognized that the defendant used it for the purpose of performing the existing debt repayment in which repayment is urgent,

It can be seen (see Supreme Court Decision 92Do2588 delivered on January 15, 1993). 2) Comprehensively taking into account the following circumstances acknowledged based on the evidence duly adopted and investigated by the court below, the defendant could fully recognize the fact of deceiving the victim and deceiving the money.

(1) On July 2012, the Defendant opened and operated a closed-end shop, but has been using the shop as operating expenses by receiving loans from financial institutions and number of days due to a low operating staff.

2. The Defendant