The defendant's appeal is dismissed.

Summary of Grounds for Appeal

A. When the Defendant borrowed money as stated in the facts charged from the victim C, the Defendant did not have the intention to commit the crime by deception because he had the intent and ability to repay the money.

B. The lower court’s sentence of unreasonable sentencing (fine 4 million won) is too unreasonable.

2. Determination

A. (1) Determination of the assertion of mistake of facts should be made by taking full account of the objective circumstances such as the Defendant’s financial history, environment, content of the crime, process of transaction, relationship with the victim, etc. before and after the crime unless the Defendant confessions.

In the civil monetary lending relationship, the intention of defraudation of the borrowed money can not be acknowledged, but in the case of borrowing the money by pretending to be repaid even though the defendant has no intention of full repayment or has no ability to repay within the due date as promised at the time of repayment, the intention of defraudation may be recognized.

(see, e.g., Supreme Court Decisions 83Do1048, Aug. 23, 1983; 2017Do20682, Aug. 1, 2018). (2) The Defendant asserted the same purport as the grounds for appeal even in the lower judgment, but the lower court rejected the Defendant’s assertion and pronounced the Defendant guilty.

Comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted and investigated by the court below, the defendant is recognized to have received money by deceiving the victim without intent or ability to repay as agreed with the victim, and therefore, it is recognized that the defendant had the intention to acquire money by deception.

Therefore, the judgment of the court below is just and there is no error of misconception of facts alleged by the defendant, and this part of the defendant is without merit.

(A) Comprehensively taking account of the following facts and circumstances, the Defendant borrowed KRW 40 million from the victim on December 28, 2017.