The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. The lower court found the Defendant guilty of the facts charged of this case, although the Defendant did not borrow money from the damaged person without the intention or ability to repay the borrowed money from the beginning. However, the lower court erred by misapprehending the legal doctrine.

B. The lower court’s sentence (1.8 million won) against an unfair defendant in sentencing is too unreasonable.

2. Judgment on the Defendant’s assertion of mistake of facts

A. On July 9, 2015, the Defendant charged the instant facts charged, “The Defendant shall pay the victim C interest at the rate of 4% per month when he/she lends KRW 10 million to the victim C, and shall repay the principal six months after the payment of the principal.

“.....”

However, at the time of fact, the defendant was in progress with the individual rehabilitation procedure, and even if he borrowed money from the victim with the debt of KRW 150 million, he did not have an intention or ability to repay the principal after six months.

The defendant deceivings the victim as above, and he obtained the delivery of KRW 10 million from the victim.

[....]

B. In light of the Defendant’s debt details, the time of occurrence, the loan process of this case, etc., the lower court convicted the Defendant as to the facts charged in this case on the ground that the Defendant had no intent and ability to repay.

(c)

1) Determination of the relevant legal principles) The establishment of a crime of fraud through the defraudation of the borrowed money is determined as at the time of the borrowing. As such, if the Defendant had the intent and ability to repay at the time of borrowing, then the Defendant was unable to repay the borrowed money thereafter.

Even if it is a mere non-performance of civil liability, it cannot be said that criminal fraud is established. On the other hand, the existence of the criminal intent of defraudation, which is a subjective constituent element of fraud, is objective such as the re-performance of the defendant before and after the crime, the environment, the contents of the crime, the process of the transaction, and the relationship with the victim, unless the defendant makes a confession.