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The defendant shall be innocent.
Reasons
Around June 2012, the summary of the facts charged stated that “Around June 2012, the Defendant loaned KRW 10 million to B and D, and if D did not repay, D will be responsible for and repaid to D’s loan. In the future, D will recover KRW 30 million from the money, and will be repaid without molding.”
However, even if the defendant borrowed money from the victim with a debt equivalent to KRW 60 million at the time, he did not have the intent and ability to repay the money, and even if he did not have the intent to pay the money of KRW 30 million, he did not have the intent to pay the money of the victim.
On June 18, 2012, the Defendant, by deceiving the victim as above, received the account transfer of KRW 10 million under the name of a national bank account under the name of the Defendant, and acquired the total amount of KRW 20 million by account transfer under the same name as the same account around June 19, 2012.
Judgment
1. Whether fraud is established through the deception of the borrowed money shall be determined at the time of the borrowing. Thus, even if the defendant had the intent and ability to repay the borrowed money at the time of the borrowing, if the defendant did not repay the borrowed money thereafter, it is merely a non-performance under civil law, and it cannot be said that a criminal fraud is established. The existence of the criminal intent of the defraudation, which is a subjective constituent element of the crime, shall be determined by taking full account of the objective circumstances such as the defendant's financial history, environment, details and contents of the crime before and after the crime, the process of
(See Supreme Court Decision 95Do3034 delivered on March 26, 1996). Meanwhile, the conviction ought to be based on evidence with probative value, which leads to a judge to have the conviction that the facts charged are true beyond a reasonable doubt, and if there is no such evidence, even if there is suspicion of guilt against the defendant, it is inevitable to determine the defendant’s interest.