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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. The Defendant, while borrowing money from the victim, received a total of KRW 66,125,00 from the victim, and repaid KRW 33,430,00 in total under the pretext of repayment of interest and some principal, the actual amount of damage shall be calculated as KRW 32,695,00.
However, the judgment of the court below that recognized the deceptive amount of KRW 44,850,000 is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.
B. The sentence sentenced by the lower court to the Defendant (six months of imprisonment) is too unreasonable.
2. Determination
A. 1) Determination on the assertion of misunderstanding of facts 1) In the case of fraud involving deception, if there is a delivery of money by deception, it constitutes a crime of fraud by itself, which infringes on the victim's property, and even if there was no considerable price or no damage to the victim's entire property, even though the crime of fraud has not been established, it does not affect the establishment of the crime of fraud. Therefore, even in the case of partial payment of the price in fraud, the amount obtained by deception is not the difference between the amount paid by the damaged person and the amount paid (see Supreme Court Decision 2006Do7470, Jan. 25, 2007, etc.). However, according to the evidence duly adopted and investigated by the court below, the damage amount in this case was deposited into the defendant by the damaged person.
It was calculated on the basis of the stated amount, and it can be fully recognized that the defendant acquired the above amount to the victim as stated in the facts constituting the crime in the judgment of the court below from the time when the defendant first borrowed money to the victim.
3) In full view of the above recognized facts and the legal principles as seen earlier, insofar as a crime of fraud is established by receiving money from the victim with the intent of defraudation, there is money that the defendant actually received from the victim or paid to the victim for repayment.
(b) if any;