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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal is that the defendant borrowed KRW 65 million from the victim at the investigation stage, but used KRW 26.5 million for the expenses related to the clans, the defendant denied the intent of the crime of defraudation, but the court below did not agree with the statement by asserting that the defendant did not intend to acquire 65 million won from the victim.
In addition, the defendant asserted that he used the above money as a clan-related expense, but failed to submit objective data on the date of use, name, amount, etc., or failed to submit objective data. In particular, when the defendant's account transaction statement submitted as evidence, the defendant did not make clear answers as to his place of use, etc. or failed to submit relevant data.
Considering such various circumstances, although the defendant could fully recognize the defendant's fraud by deceiving the victim as stated in the facts charged in this case, borrowing the victim for the expenses of clan-related litigation and using it for personal purpose, such as paying personal debts, etc., the court below acquitted the defendant of this part of the facts charged. The court below erred by misapprehending the facts and affecting the conclusion of the judgment.
2. Determination
A. On January 2009, the Defendant of the facts charged in the instant case concluded that “F would bring a lawsuit against a clan member in order to recover a right from the victim D (the 55 years old) in the Suwon-si Suwon-si, which was operated by the victim D (the 55 years old) in the Suwon-si, the Defendant would bring a false statement that “F would bring a lawsuit against a clan member, but would need approximately KRW 60 million with all expenses, including litigation fees.” If three months have elapsed, it would be possible to sufficiently win the lawsuit, and if it is lent, it would give a total of KRW 120,000,000,000 to the principal plus interest.”
However, in fact, the defendant borrowed money from the victim and tried to use the money to repay the existing debts, and the clan F.