The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal (fact-finding) fully recognizes the fact that the Defendant acquired the building materials by deceiving the victim without the intent or ability to pay the price, in light of the financial situation of the Defendant at the time when the Defendant was supplied with the building materials by the victim, the time when the Defendant received the construction cost from another construction site, and the amount thereof, etc., the lower court acquitted the Defendant of the facts charged in this case on the grounds as

2. Whether the crime of fraud is established through the defraudation of the judgment transaction goods shall be determined by whether the victim had the intention to acquire the goods from the victim by making a false statement as if the victim were to repay the price of the goods, although there is no intention or ability to do so at the time of the transaction. As such, it shall not be deemed that the crime of fraud cannot be deemed that the payment of the price of goods cannot be made in a lump sum

(See Supreme Court Decision 2002Do5265 Decided January 24, 2003, etc.). In addition, the subjective constituent elements of fraud are to be determined by comprehensively taking account of the objective circumstances such as the Defendant’s financial power before and after the crime, the environment, the details and details of the crime, the process of transaction, and the relationship with the victim, unless the Defendant makes a confession.

(See Supreme Court Decision 2008Do2893 Decided June 12, 2008). Meanwhile, the conviction ought to be based on evidence with probative value that leads a judge to have a conviction that the facts charged are true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is doubt as to the defendant's guilt, it is inevitable to determine it as the benefit of the defendant, and the same applies to the recognition of the criminal intent, which is a subjective element of fraud.

Supreme Court Decision 2005Do12 Decided October 14, 2005 and Supreme Court Decision 2005Do12 Decided December 12, 2010