The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal is reasonable to deem that the Defendant did not have the intent or ability to repay the borrowed money at the time of borrowing the money from the victim, or did not have the intention to do so at least that it would not be possible to do so in economic terms.

However, the judgment of the court below which acquitted the defendant is erroneous by misunderstanding the facts and affecting the judgment.

2. The summary of the facts charged is that the Defendant is engaged in the construction business under the trade name of the “C” (hereinafter “C”), and operates the “D”-based store (hereinafter “instant store”).

On June 2, 2009, the Defendant: “Around June 2, 2009, the Defendant was issued KRW 1,500,000 from the victim F to the victim F, who was aware of the fact in this case, for a sum of KRW 1,50,00,00,000 from the victim’s lending money for credit card payment and household check payment until September 2, 2009.” In addition, the Defendant received KRW 5,00,000 from the victim to the middle of October 2, 2009 as above four times as a loan borrowed money.

However, at the time, C was required to pay 60 million to 7 million won a fixed expense each month, and there was almost no operating profit, and there was a debt of about 30 million won in relation to the operation of the instant store. In addition, there was no special property having economic value, such as the establishment of two collateral mortgages, and there was no intention or ability to pay the above borrowed money properly.

Accordingly, the defendant deceivings the victim, and acquired 11,50,000 won as the borrowed money from the victim.

3. Determination

A. Whether fraud is established through the defraudation of the relevant legal principles is determined at the time of borrowing. Therefore, even if the Defendant had the intent and ability to repay at the time of borrowing, he/she could not thereafter repay the borrowed money.