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The judgment below
Of them, the part on Defendant B shall be reversed.
Defendant
B A person shall be punished by imprisonment for one year.
except that this shall not apply.
Reasons
1. Summary of the Defendants’ grounds for appeal
A. Defendant A1) The fact that the Defendant, by mistake of fact, borrowed money from the injured party, was not only the costs of the joint Defendant B’s lawsuit but also the F apartment investment bond.
In addition, since the defendant borrowed money from the damaged person as he/she would have to repay the borrowed money, he/she did not have the intention of defraudation.
In addition, since the defendant borrowed money from the damaged person at the end of the joint defendant B and H that he uses it as the litigation cost of the joint defendant B, he paid it to B, there is a criminal intent to acquire money from the defendant in this regard.
Now, B and the instant crime were not recruited.
2) In light of the circumstances, such as the fact that the criminal defendant agreed with the victim and the first offender, the sentence of two years of suspended sentence is too unreasonable for one year of imprisonment sentenced by the lower court.
B. Although Defendant B received money from Co-Defendant A as an investment bond in F apartment from Co-Defendant A, it was merely an investment received from Defendant A, and did not attract to commit the instant fraud, the judgment of the court below convicting the Defendant of the facts charged is erroneous in the misapprehension of facts.
2. Determination
A. First of all, Defendant A1 was aware of the fact that the Defendant borrowed money from the damaged party under various names, such as the co-defendant B’s litigation cost, F apartment investment deposit, etc., and the Defendant knew on March 24, 2015 that the F apartment redevelopment project could not be carried out at the time of borrowing money from the injured party through his defense counsel’s written opinion, and notified the victim that he borrowed money for the preparation of the joint Defendant B’s litigation cost.
The arguments and the evidence duly adopted and examined by the court below and the court below, in particular, the injured party as a witness in the court below.