The defendant's appeal is dismissed.

1. The gist of the grounds for appeal (the factual error and inappropriate sentencing)

A. Although the defendant, as stated in the facts of the crime in the judgment of the court below, received money from the victims as a share investment, he could not return money to the victims because he failed to make an investment. At the time, the defendant trusted his ability to make a share transaction and thought that he could return money to the victims by adding the investment principal and the profits equivalent thereto. Therefore, there was no intention to commit the crime of defraudation.

B. The lower court’s sentence of unreasonable sentencing (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. The intent of defraudation, which is a subjective constituent element of the crime of fraud, is to be determined by comprehensively taking account of the objective circumstances such as the Defendant’s financial history before and after the crime, the environment, the content of the crime, the process of transaction execution, etc. insofar as the Defendant does not make a confession. The intent of the crime is not a conclusive intention, but a willful negligence is sufficient

(see, e.g., Supreme Court Decisions 2007Do10416, Feb. 28, 2008; 2008Do1697, Jun. 23, 2009). Moreover, as a subjective element of constituent elements of crime, dolusent intent refers to cases where the possibility of occurrence of crime is expressed as unclear and it is acceptable.

On the other hand, the following circumstances acknowledged by each evidence duly adopted and investigated by the court below, i.e., ① stock transaction is a transaction with a high risk of securing principal and securing certain profits due to its nature, and despite the fact that the defendant promised not only to guarantee principal when receiving money from the victims, but also to guarantee a higher return of profit than the bank's own, and accordingly, solicited the victims to engage in the stock transaction, and accordingly, to deliver the funds to the victims. The above end of the defendant is an important basis for determining whether to grant the victims' investment funds.