The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.

1. Summary of grounds for appeal;

A. Unlike the Defendant’s original plan for mistake of facts, the Defendant failed to pay the amount promised to the victim because the project did not run smoothly.

The defendant had no intention to commit fraud.

B. The lower court’s sentence of unreasonable sentencing (ten months of imprisonment) is too heavy or unhued so as to be unfair.

2. Determination on the grounds for appeal

A. As to the Defendant’s assertion of mistake of facts, insofar as the criminal intent of defraudation, which is a subjective constituent element of the crime of fraud, has to be determined by comprehensively taking account of the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of transaction before and after the crime, unless the Defendant confessions, the criminal intent is sufficient, not a conclusive

(See Supreme Court Decision 2007Do10416 Decided February 28, 2008). In full view of the following circumstances revealed by the evidence duly adopted and examined by the lower court, it is deemed that the Defendant was aware of the fact that the principal and interest promised to the victim may not be paid on a timely basis.

Therefore, this part of the defendant's argument is without merit.

1) At the time of borrowing KRW 80 million from the victim, the Defendant was a bad credit holder at the time of borrowing KRW 80 million from the victim. The Defendant was working at the NN operated by H, but the said company’s business fund was insufficient, and the Defendant borrowed the above money from the victim. 2) On June 10, 2016, the Defendant borrowed KRW 80 million from the victim for the purpose of the said company’s business fund. On June 10, 2016, the Defendant paid interest of KRW 10 million per month with the business revenue if the victim borrowed KRW 80 million to the victim for the purpose of the said company’s business fund.

The victim believed that it was 80,000,000 won in total on two occasions.

3. Unlike the initial promise to use the victim for the purpose of the business fund, the defendant is KRW 56 million out of the amount of KRW 80 million received from the victim.