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The prosecutor's appeal is dismissed.
Reasons
1. In full view of the summary of the grounds for appeal, the loan certificate, the sales revenue of the LABD and the LABD, and the Defendant’s financial status, etc., it can be recognized that the Defendant, even if the Defendant borrowed money from the victim, he/she did not have the intent and ability to repay the money, by deceiving the victim as stated in the facts charged.
Nevertheless, the court below acquitted the charged facts of this case, and it erred by misapprehending the facts, thereby affecting the conclusion of the judgment.
2. Determination
A. The burden of proving the facts charged in a criminal trial is to be borne by the prosecutor, and the conviction is to be based on the evidence of probative value, which makes the judge feel true to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, the suspect is suspected of guilt even in the absence of such evidence.
Even if there is no choice but to judge the interests of the defendant.
(see, e.g., Supreme Court Decision 2010Do9633, Nov. 11, 2010). Determination at the time of the establishment of a crime of fraud is based on the time of the act of fraud. Thus, if the borrower has the intent and ability to repay money at the time of lending the money in a loan for consumption transaction, even if the borrower did not repay money thereafter, it is merely a non-performance under the civil law and is not a criminal
Therefore, in a loan for consumption, in case where the lender recognizes the credit standing of the lender and the borrower in a loan for consumption, such as the relationship of relatives and relatives between the lender and the borrower, and where it is anticipated or could be sufficiently anticipated that the borrower would cause delay in repayment or impossibility of repayment in the future due to the recognition of the credit standing of the borrower, there are other circumstances, such as the borrower's expression of falsity as to material facts that may determine whether to grant a loan for consumption with respect to the detailed intent of repayment, ability to repay,