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The prosecutor's appeal is dismissed.
Reasons
1. The victims of the summary of the grounds for appeal are the government-funded construction work, and thus, the construction cost is expected to be paid as a matter of course. The Defendant did not pay the construction cost received from the Daejeon Regional Land Management Office to the victims who performed the construction work, and used the building that he/she owns as the representative director to first lend from the Han Bank as security to the victims.
In light of the above circumstances and the financial status and liability status of D Co., Ltd. (Gu E Co., Ltd.; hereinafter “instant Co., Ltd.”) at that time, it can be recognized that the Defendant has the criminal intent to obtain fraud.
2. Determination
A. The lower court found the Defendant not guilty of the instant facts charged on the following grounds.
1) The establishment of fraud by acquiring pecuniary benefits equivalent to the construction cost should be determined as at the time of the contract, and the payment of the construction cost cannot be made due to changes in economic conditions after the contract is concluded.
Even if this is merely a mere non-performance of civil liability, it cannot be said that criminal fraud is established. The criminal intent of defraudation, which is a subjective constituent element of fraud, shall be determined by taking into account objective circumstances such as the defendant's financial history before and after the crime, environment, circumstances and contents of the crime, the process of the transaction, and the relationship with the victim, unless the defendant makes a confession.
Inasmuch as the recognition of conviction of one part of the facts charged ought to be based on evidence with probative value that leads a judge to feel true beyond a reasonable doubt, if there is no such evidence, even if there is doubt of guilt against the defendant, it is inevitable to determine it as the benefit of the defendant. 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).