The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

Provided, That the above punishment shall be imposed for two years from the date of the final judgment.

1. The summary of the grounds for appeal is that the Defendant had no intention to repay and capacity at the time of receiving the money recorded in the facts charged of this case from the victim, and therefore there was no intention to commit fraud.

2. Determination

A. The lower court found the Defendant guilty of all of the facts constituting the Defendant’s crime by compiling the evidence as indicated in its judgment.

B. On August 24, 2010, the crime of fraud, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the financial records of the accused before and after the crime, the environment, the details and contents of the crime, and the process of transaction execution, unless the accused confessions (see, e.g., Supreme Court Decision 2004Do8651, Mar. 24, 2005). Whether the crime of fraud by defraudation of property profits is established shall be determined at the time of the act, and it shall not be punished for fraud on the ground that it is impossible to perform his/her obligations, such as repayment of the borrowed money due to changes in economic conditions after the act, etc. (see, e.g., Supreme Court Decision 99Do1682, Jul. 23, 199). Meanwhile, the burden of proving the facts charged in a criminal trial lies with the prosecutor, and even if the defendant stated in the investigative agency is not able to have sufficient probative value to be determined as follows.