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The defendant shall be innocent.
Reasons
1. On June 9, 2015, the summary of the facts charged in the instant case is to pay KRW 21 million to the employees in charge of lending the victim company in the Gwangju Branch Office at 80 Hyundai Capital Co., Ltd. (hereinafter “victim Company”) located in the sixth floor of the 80 Hyundai Capital Building, Seo-gu, Gwangju, Seo-gu, Gwangju, and KRW 890,333 each month when lending KRW 21 million to the employees in charge of lending the victim company.
An application for a loan was made to the effect that it is "."
However, in fact, the Defendant was at least KRW 290,000,000,000 that he borrowed from the branch at the time, and the Defendant was additionally loaned KRW 86,955,00 from other financial institutions on June 9, 2015, and thus, the Defendant did not have the intent or ability to pay the principal and interest of the loan to the victim company normally.
As such, the Defendant, by deceiving the employees in charge of the victim company, received 21 million won from the victim company to the account in the name of the defendant on the same day, and acquired it by fraud.
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 financial history, environment, details and contents of the crime before and after the crime, and the process of transaction execution, unless the defendant is led to confession.
Meanwhile, the finding of guilt ought to be based on evidence with probative value, which leads a judge to have a conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt about the defendant's guilt, it is inevitable to determine the defendant's interest. The same applies to the recognition of the criminal intent, which is a subjective element of fraud.
(see, e.g., Supreme Court Decision 2015Do2255, Jul. 23, 2015). Also, it should be determined at the time of the establishment of a crime of fraud. Therefore, if the borrower has the intent and ability to repay money in a loan for consumption transaction at the time of lending the money.