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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for four months.
Reasons
1. Summary of grounds for appeal;
A. In fact, misunderstanding of the legal principles, the Defendant believed that the start-up company loaned the amount of KRW 30 million from the start-up company to KRW 50 million and carried out chain construction, but the start-up company is unable to lend its own loans.
On the ground that the instant construction cost could not be paid, and the victims of the instant case were aware of the fact that the Defendant intended to receive a loan and pay the construction cost, and thus, the Defendant did not have any intent to commit fraud and did not mislead the victims, and the lower court convicted the Defendant by misapprehending the legal doctrine or by misapprehending the legal doctrine.
B. The sentence sentenced by the lower court to the Defendant (eight months of imprisonment) is too unreasonable.
2. Determination
A. In a case where a misunderstanding of the facts or legal principles denies the criminal intent by deception, the facts constituting the subjective element of such crime are bound to be proven by means of proving indirect facts or circumstantial facts having considerable relevance with the criminal intent due to the nature of things. In this case, what constitutes indirect facts or circumstantial facts having considerable relevance with the criminal intent should be determined by the method of reasonably determining the link of facts based on a thorough observation or analysis based on normal empirical rule (see, e.g., Supreme Court Decision 2010Do10418, Oct. 28, 2010). The following circumstances recognized by the evidence duly adopted and investigated by the lower court, namely, since the Defendant was bad at the time of the instant construction work, the Defendant registered as a business operator in the name of his father, the Defendant would have obtained loans from victims E and G to pay construction expenses.
However, it is true that the defendant could not obtain a credit loan under the name of the defendant as the bad credit, and the loan has already been made in the building in the name of the defendant's father.