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The prosecutor's appeal is dismissed.
Reasons
1. The actual owner of active property under the name of the defendant is the husband of the defendant who is living separately, and there was little possibility of recovering monetary claims held by the defendant, while the defendant's passive property substantially exceeded his/her debts for about KRW 400 million, the defendant's intent of the crime of defraudation was committed since it cannot be deemed that the defendant did not have financial capability at the time of borrowing money from the damaged person.
The judgment of the court below which acquitted the charged facts of this case on the ground that it cannot be seen, is erroneous in the misapprehension of facts and affected the judgment.
2. Determination
A. The summary of the facts charged is that the Defendant, around December 27, 2013, has to borrow a high-class car to the victim D and have a high-class visual view from Echeon-si, Echeon-si, with his/her re-fluence, and he/she has to pay off the car urgently.
The phrase “I will write down only three months of interest on the third part of a month.”
However, in fact, the Defendant has already been liable for several billion won, and the interest accrued therefrom was borne by the Defendant, and since the actual owner of the real estate in the name of the Defendant is the husband who is separate from the husband, the Defendant did not have any intention or ability to complete payment even if he borrowed money from the damaged husband because he was planning to transfer the ownership of the real estate.
As such, the Defendant, as from March 6, 2014, received a total of 9,950,000 won from the time when he/she was accused of the victim and received 29,100,000 won from the victim for the same day as the borrowed money, from March 6, 2014.
B. The lower court’s determination is just based on the evidence submitted by the prosecutor, on the ground that there is no evidence to support that the Defendant was a plan to transfer the real estate owned by the Defendant to her husband at the time of borrowing money from the injured party, even if the Defendant’s active property exceeded the value of the passive property.