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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. The Defendant is the former B (former E, hereinafter referred to as “victim”) as stated in the facts charged.
The Defendant did not deception the Defendant, but did not have the intent to defraud the victimized company. In light of the occupation, etc. at the time, the Defendant thought that the Defendant could be able to fully repay the loan, and the victimized company also conducted the loan after sufficiently investigating and grasping the credit rating, etc. of the Defendant. Nevertheless, the judgment of the court below which found the Defendant guilty is erroneous in misunderstanding of facts. (B) The sentence imposed by the court below on the Defendant (5 million won of fine) is too unreasonable.
2. Determination
A. Determination on the assertion of mistake of facts ought to be made by comprehensively taking account of the objective circumstances, such as the Defendant’s financial history, environment, content of the crime, process of transaction, and relationship with the victim before and after the crime unless the Defendant makes a confession. However, in the civil monetary lending relationship, the intention of defraudation of the borrowed money cannot be acknowledged with the fact of nonperformance, but in a case where the Defendant borrowed the borrowed money as if he would repay the borrowed money even though the Defendant did not have an intent to repay or have no ability to repay within the due date for repayment as he/she promised to do so, the intention of defraudation may be recognized (see, e.g., Supreme Court Decision 2017Do20682, Aug. 1, 2018). 2) In light of the aforementioned facts and circumstances acknowledged by the evidence duly adopted and investigated by the court below and the trial court, even though the Defendant did not have an intent or ability to repay the borrowed money as agreed by the victimized company, it is recognized that the Defendant had an intention or ability to obtain the borrowed money around December 200, 3000,0000.
(1) The monthly average of 3.5 million to 4 million won around the time of borrowing a loan from a victimized company.