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The prosecutor's appeal is dismissed.
Reasons
1. In light of the following circumstances, the court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment even though it is possible to recognize that the defendant had taken money by deceiving the victim as stated in the facts charged.
A. In light of the fact that since around 2009 when the crime of this case started, sales of the company operated by the defendant was reduced rapidly, and the market price of the old-si I land owned by the defendant (hereinafter “the land of this case”) exceeds the amount of debt secured by the right to collateral security, etc., the defendant did not have financial capability at the time of the crime of this case.
B. In light of the fact that: (a) the Defendant prepared a loan certificate or a fair deed on several occasions to the victim, it was merely an attempt to avoid deception or liability to repay money continuously from the victim; (b) the instant land was difficult to sell itself; and (c) there was no real value as seen earlier; and (d) there was no objective data on the two-wheeled motor vehicle business that the Defendant promoted; and (b) there was no intention to repay to the Defendant.
subsection (b) of this section.
(c)
It was known that the injured party was aware of the Defendant’s ability to repay
It is difficult to see it.
(d)
Defendant
It is recognized that the use of the borrowed money in relation to the business of the two-wheeled motor vehicle and the election fund or the name of the funds.
2. Determination
A. The lower court determined that the instant facts charged constituted a case where there is no proof of crime on the grounds as delineated below.
In other words, around May 2009, when the defendant borrowed money from the damaged person, the defendant was sufficiently able to repay the borrowed money (200 million won). After that, even before May 2010, the right to collateral security over the appraised value of the land of this case was established and the defendant borrowed money from the damaged person until before May 2010 (200 million won).