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The prosecutor's appeal is dismissed.
Reasons
1. In light of the circumstances acknowledged by the prosecutor’s evidence submitted by the gist of the grounds for appeal, it is sufficiently recognized that the defendant did not have the intent or ability to pay to the defendant the money from the victim E as stated in the facts charged.
Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the crime of fraud or fraud, which affected the conclusion of the judgment.
2. Determination
A. A. Around June 201, the summary of the facts charged in the instant case stated that, within the Defendant’s vehicle on the street located in Seocho-gu Seoul Metropolitan Government, “A loaning KRW 100 million to the victim E in the name of F restaurant, if the Defendant borrowed KRW 50 million to the victim E, he/she will borrow the restaurant as collateral and obtain an additional loan as collateral and repay the apartment owned by him/her until September 5, 201.”
However, in fact, in order to receive the F restaurant operation right in excess of the amount of KRW 134 million, it is necessary for the Defendant to take over the F restaurant operation right, but at the time, it is unclear whether the Defendant would be able to receive the additional loan as collateral because of the credit card payment, bank loan interest, etc. with excessive debts from the victim, with the exception of the above KRW 100,000,000,000,000,000 from the victim, and it is not possible to receive the loan from the victim as collateral, even if the Defendant borrowed KRW 100,000,000 from the victim, it is not possible to obtain the loan as collateral. At the time, the apartment owned by the Defendant reaches about 70% of the collateral ratio, and the price drops in order to extend the repayment period of the existing loan on July 21, 201, it is well known that the Defendant could not receive the said additional loan prior to receiving the money from the victim.
Nevertheless, the defendant deceivings the victim as such and receives KRW 100 million from the victim around August 10, 201.