The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

However, the above punishment for a period of two years from the date this judgment became final and conclusive.

1. Summary of grounds for appeal;

A. On January 25, 2009, the Defendant had the intention to repay or ability to repay KRW 20 million from the damaged person at the time of borrowing, and thus, he had the intent to commit the crime of defraudation.

shall not be deemed to exist.

In addition, on February 9, 2012, the Defendant borrowed KRW 15 million from the injured party on February 9, 2012, and therefore, the Defendant committed this part of the fraud.

shall not be deemed to exist.

B. The punishment of the lower court (six months of imprisonment) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. The lower court also asserted to the same effect, and the lower court, on the following grounds, rejected the Defendant’s allegation on the charges of this case, recognizing the Defendant guilty.

1) The criminal intent of defraudation, which is a subjective constituent element of the crime of fraud on January 25, 2009, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of performing transactions before and after the crime unless the Defendant is led to the crime. The criminal intent is not a conclusive intention but an intentional intentional act (see, e.g., Supreme Court Decisions 2007Do10416, Feb. 28, 2008; 2007Do8726, Aug. 21, 2008). Comprehensively taking into account the following circumstances duly adopted at the lower court and recognized by evidence, the Defendant was unable to repay at the time of the crime of this case, and at least it may be sufficiently recognized that he received money from the damaged person, even though he was aware that the above borrowed money could not be fully repaid within one year.

① At the time of borrowing the above money, the Defendant was receiving approximately KRW 60 million of annual salary as a soldier on active duty. On January 201, 2010, the said money borrowed was owned in the land map located in Daejeon U.S., Daejeon. Around December 2009, the Defendant had the ability to repay the borrowed money with retirement pay.

The argument is asserted.

(a) At the time of the above loan, the Defendant was on active duty.