The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. In light of the fact that the Defendant, at the time of borrowing, filed a complaint with the competent investigation agency due to the shortage of funds to purchase the oil price, and stated that he was unable to repay the proceeds from the operation of the gas station in the state of a debt worth one billion won, and that he was unable to repay the funds borrowed by the victim, and that the Defendant purchased the gas station in addition, without paying the borrowed money, the Defendant bears an obligation equivalent to five billion won when he purchased the gas station. Since August 2006, the Defendant was liable for the guaranteed obligation by guaranteeing the loan obligations of Form B; the Defendant was liable for the guaranteed obligation; the account balance in the account account in the name of F Co., Ltd. operated by the Defendant at the time of borrowing was continuously mathy. In light of the fact that the bank account balance in the name of F Co., Ltd. operated by the Defendant and the Defendant had been mathy without the ability or intent to repay the borrowed money.

Nevertheless, the court below denied the criminal intent of defraudation by the defendant and sentenced not guilty of this part of the facts charged. In so determining, the court below erred by misapprehending the legal principles.

B. The sentence of imprisonment (six months of imprisonment and three years of suspended execution) against the Defendant by the lower court is too uneasible and unreasonable.

2. Determination

A. As to the assertion of mistake of facts, it shall be determined at the time of the loan. Thus, if the defendant had the intent and ability to repay the loan at the time of the loan, even if the defendant failed to repay the loan thereafter, this is merely a non-performance of civil liability, and it cannot be said that a criminal fraud is established. Meanwhile, the existence of the criminal intent of the defraudation, which is a subjective constituent element of the crime, is the refeasible power, environment, details of the crime before and after the crime, unless the defendant makes a confession.