The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

However, the above punishment for a period of two years from the date this judgment became final and conclusive.

1. Summary of grounds for appeal;

A. Defendant 1) In fact, the Defendant had the ability and intention to carry out the instant construction work at the time of receiving advance payment of construction cost of KRW 97,416,00 in Gangwon-do G Corporation (hereinafter “the instant construction work”) from the defrauded, but the Defendant did not take measures such as progress of construction or return of construction cost due to the aggravation of financial standing in another construction work that the Defendant continued. As such, the Defendant did not have any criminal intent to obtain by deception.

The judgment of the court below which found a guilty of fraud is erroneous by misunderstanding the facts and affecting the conclusion of the judgment.

2) The sentence of the lower court’s unfair sentencing (one year and six months of imprisonment, three years of suspended execution, observation of protection, 160 hours of community service order) is too unreasonable.

B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

2. Determination

A. The criminal intent of defraudation, which is a subjective constituent element of fraud in determining the misunderstanding of the facts or the legal doctrine, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history before and after the crime, environment, details of the crime, and the process of transaction execution, unless the Defendant makes a confession. The crime of fraud is established even by willful negligence.

On the other hand, the subjective element of the constituent elements of the crime refers to the case where the possibility of occurrence of the crime is expressed as uncertain and it is acceptable, and there was an incomplete intention.

In order to do so, there is not only awareness of the possibility of occurrence of a crime, but also there is a internal intent to accept the risk of occurrence of a crime. Whether an actor has accepted the possibility of occurrence of a crime is not dependent on the statement of the offender, but also on the basis of specific circumstances, such as the form of an act that is externally revealed and the situation of an act, etc., the possibility of occurrence of a crime is assessed.