The defendant shall be innocent.

1. On April 4, 2012, the Defendant: (a) was required to pay money at the Defendant’s home of the Seocho-gu Seocho-gu Seoul Defendant’s office and interest on loans, etc.; (b) made phone call to the Victim D (Representative E) Co., Ltd. to receive KRW 3 million.

The terms and conditions of a loan are agreed on the condition that 1.60,000 won per month shall be paid to the above company for the period from May 1, 2012 to October 1, 2014, which is the following month, and the defendant submitted a loan contract, confirmation document, a certified copy and abstract of resident registration and a copy of resident registration certificate necessary for the loan to the victim company.

However, the defendant did not have the ability to repay the loan even after receiving the loan from the victim and there was no intention to do so.

As such, the Defendant, by deceiving the victim company, received 3 million won from the victim to the account and acquired it by fraud.

2. Determination

A. The existence of the crime of fraud, which is a subjective constituent element of the crime, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial power, environment, content of the crime, process of transaction, and relationship with the victim before and after the crime (see, e.g., Supreme Court Decision 2004Do3515, Dec. 10, 2004). Whether such crime of fraud is established shall be determined at the time of the act, and it shall not be punished for fraud on the ground that the Defendant is in a state of default due to changes, etc. in economic conditions after the act, etc. (see, e.g., Supreme Court Decision 2008Do5618, Sept. 25, 2008). Meanwhile, the conviction should be based on evidence with probative value that leads to a judge to have a true conviction to the extent that there is no reasonable doubt, and if there is no such evidence, there is no doubt against the Defendant.

Even if the interests of the defendant are to be determined by the interests of the defendant, this is also the same in recognizing the criminal intent, which is a subjective element of fraud.

Supreme Court Decision 200