The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

The above fine shall not be paid by the defendant.

1. Summary of grounds for appeal;

A. The petition of appeal submitted by a defendant of mistake of facts only states the purport of unfair sentencing, and the defendant asserted only unfair sentencing as a summary of the grounds for appeal in the court of appeal, but the statement of grounds for appeal submitted by the defendant includes the above arguments, so it shall be deemed that mistake of facts is claimed.

Since the defendant provided sufficient security to the victim while borrowing money from the victim, it cannot be said that he had the intention to commit the crime of fraud or had no intention or ability to repay the borrowed money.

B. The sentence imposed by the lower court on the grounds of unreasonable sentencing (7 million won of fine) is too unreasonable.

2. Determination

A. (1) In a case where a person borrows money as if he would repay it at the time although there is no intention of full repayment or there is no intention of full repayment in the civil monetary lending and lending relationship or there is no intention of repayment on the date of the promised repayment, the crime of defraudation may be recognized.

(See Supreme Court Decisions 87Do1605 delivered on September 22, 1987, 97Do497 delivered on May 16, 1997, etc.). The criminal intent of fraud, which is a constituent element of fraud, is to be determined by comprehensively taking account of objective circumstances, such as the defendant’s financial history before and after the crime, environment, details of the crime, process of transaction performance, etc. unless the defendant makes a confession unless the defendant makes a confession (see, e.g., Supreme Court Decision 95Do424 delivered on April 25, 1995). In borrowing money from another person, if the other party did not respond to the purpose of the borrowed money or the method of raising funds to pay, if the other party notified that his/her purpose or method of raising funds was contrary to the truth and received money, the crime of fraud is established, and in such a case, the conclusion does not change solely on the ground that he/she provided a security for the borrowed money obligation.

(See Supreme Court Decision 2003Do5382 delivered on September 15, 2005) (2).