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The defendant shall be innocent.
Reasons
1. On November 2012, 2012, the Defendant stated in the instant charges that “The Defendant would sell the scrap metal to the victim B while running the scrap metal business, and the funds for purchasing the scrap metal are urgently needed. If the Defendant borrowed money, the Defendant would sell the scrap metal to the third party and repay it until January 14, 2013, and pay KRW 750,000 per month interest.”
However, the Defendant was unable to lend KRW 40 million to the land owner on August 3, 2012 due to lack of transaction experience at the time, and the Defendant was unable to pay the loan to the land owner on or around August 3, 2012, and there was no special property, and even if she borrowed money from the land owner, it was unclear whether it could bring profits from the land owner. Therefore, the Defendant did not have the intent or ability to pay the loan to the land owner.
Nevertheless, the Defendant, as seen above, by deceiving the victim, received KRW 10 million on November 13, 2012 from the victim to the Agricultural Cooperative (C) account under the name of the Defendant, and obtained KRW 10 million on November 14, 2012 from the victim, and acquired KRW 30 million on the pretext of the loan.
2. Determination
A. The establishment of a crime of fraud through the deception of a related legal doctrine shall be determined at the time of borrowing. Thus, even if the defendant had the intent and ability to repay the loan at the time of borrowing, if the defendant did not repay the loan thereafter, this is merely a civil default, and it cannot be said that a criminal fraud is established. The existence of a criminal intent by defraudation, which is a subjective constituent element of a crime of fraud, shall be determined by taking into account 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 performing the transaction, and the relationship with
(see, e.g., Supreme Court Decision 95Do3034, Mar. 26, 1996). On the other hand, the conviction is to the extent that there is no room for a reasonable doubt by a judge.