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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than five months.
Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.
Reasons
1. Summary of grounds for appeal;
A. The Defendant, on June 10, 2013, borrowed money of KRW 15 million from the victim two to three days on June 10, 2013. However, at the time, the Defendant had the intent and ability to repay the money.
B. The lower court’s sentence of unreasonable sentencing (five months of imprisonment) is too unreasonable.
2. Determination
A. In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below as to the assertion of mistake of facts, it is sufficiently recognized that the defendant had no ability to repay the money to the victim at the time of borrowing the money from the victim.
Therefore, the defendant's assertion of mistake is without merit.
1) On June 10, 2013, the Defendant: (a) borrowed KRW 15 million from the victim on or after the lapse of 2-3 days; (b) however, at the time, the Defendant repaid his/her debt with the accumulated debt from another person in the form of a so-called return that would prevent the Defendant from repaying his/her debt (Evidence No. 43) (Evidence No. 43). 2) The Defendant was able to receive money in a lawsuit for divorce or property division against his/her spouse; (c) accordingly, the Defendant asserts that the claim for property
However, even though the defendant filed a lawsuit against his spouse on January 2012, the defendant was made intermittently in Canada (Evidence No. 57 page), so at the time of borrowing money from the victim, the contact was in contact with his spouse.
Even if the property division was made within two to three days, it does not seem that the property division could have received money immediately.
In fact, in the above lawsuit on July 14, 2014, the defendant's wife was sentenced to the payment of KRW 137 million to the defendant of the division of property.
3. After being urged by the victim to repay several times, the Defendant paid 12 million won to the victim on November 6, 2014, even though the victim's complaint was investigated by an investigative agency.
(b).