The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged of the instant case is that the Defendant, even if having borrowed money from the victim, did not have the intent or ability to repay it from time, on or around August 8, 2008, by deceiving the victim G as follows: “A development project, such as real estate, etc., located in Gangnam-gu Seoul, is being conducted, and if the operating fund of KRW 100 million is lent, 1.8 million shall be interest per month and the principal shall be repaid after 3 months shall be paid.” The Defendant, who received KRW 100 million from the victim, received money from the victim,

The judgment below

According to the reasoning, the court below affirmed the first instance judgment convicting the Defendant of the charges of this case on the ground that it is reasonable to recognize the fact that the Defendant, who has no ability to repay, promised to repay three months later, and borrowed KRW 100 million (hereinafter “the loan of this case”) was deceiving the victim, and it is reasonable to view that the Defendant had no ability to repay at the time of the loan of this case.

2. Whether fraud is established through the deception of the borrowed money shall be determined at the time of the borrowing. As such, even if the Defendant had the intent and ability to repay the borrowed money at the time of the borrowing, even if it is impossible to repay the borrowed money due to changes in economic circumstances thereafter, this is merely a non-performance under civil law, and it cannot be said that a criminal fraud

On the other hand, unless the defendant makes a confession, the intent of the crime of defraudation, which is a subjective constituent element of the crime, shall be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, contents of the crime, the process of transaction, the relationship with the victim, etc.

(See Supreme Court Decision 2008Do2893 Decided June 12, 2008). 3. Examining the reasoning and records of the lower judgment in accordance with the aforementioned legal doctrine, the lower court’s determination is difficult to accept for the following reasons.

(1) The lower court determined that the Defendant did not have the ability to repay at the time of the instant loan.

However, according to the records, the records are examined.