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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. The court below found the defendant guilty of the facts charged in this case although the defendant did not have a criminal intent to defraud the facts, and the court below erred in the misapprehension of facts.
B. The sentencing of the lower court is too unreasonable.
2. Determination
A. The criminal intent of defraudation, which is a subjective constituent element of the crime of fraud to determine the factual misunderstanding, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, process of transaction, etc. insofar as the Defendant does not make a confession. The criminal intent is sufficient not to have a definitive intention but to have dolusent intent, and the criminal intent of defraudation of the borrowed money can not be acknowledged immediately with the fact of default in the civil monetary lending and borrowing relationship. However, in the event the Defendant borrowed the money by pretending that it would have been repaid even though the Defendant had no intention to make a clear change or had no ability to repay within the due date of repayment, the criminal intent of defraudation can be recognized (see, e.g., Supreme Court Decision 2010Do18139, May 13, 2011). The evidence duly adopted and investigated by the court below, i.e., the victim, in the investigative agency and the court below, that the Defendant would have repaid the price of the goods after the second month.
On the other hand, the Defendant, at the time, stated that he borrowed KRW 10 million with a marina loan, and that he did not talk that there was a large amount of damage to the Defendant, and ② the Defendant was liable for financial debt equivalent to KRW 44.7 million as of March 31, 2015, and for installment payments equivalent to KRW 20.6 million, but was in arrears from March 17, 2015, and continued to decline in credit rating thereafter, and was operated by himself on March 2016.
D. In light of the fact that the victim closed down business, and that the victim did not repay the remainder of the loan from February 2016 to April 2017, in addition to the repayment of KRW 2.8 million.