The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

A fine shall not be paid by the defendant.

Since it is a property interest to postpone the performance of obligations in fraud, a crime of fraud is established if a debtor delivers a bill for the purpose of delaying the payment of the previous obligation, even though the debtor is not able to make payment to the creditor by the prescribed deadline.

(See Supreme Court Decision 97Do1095 delivered on July 25, 1997). According to the evidence submitted in the pleading, the Defendant may recognize the fact that the Defendant acquired property benefits, the issue date of the per unit, which was provided to the victim as a debt security, after the lapse of two months after the due date, around September 14, 2009.

Even if the defendant acquired the principal of the obligation, the postponement of the obligation acquisition period is another property profit that is different from the act of acquiring the principal of the obligation.

Because the punishment of the act of acquiring the principal of the debt cannot be deemed to include the punishment of the act of delaying the performance of the obligation, the postponement of the performance of the obligation does not constitute an act of acquiring the principal by fraud.

Furthermore, even if the relationship between the two crimes is in a relationship of legal concurrence, such as an act of ex post facto ex post facto action, it shall be deemed that the punishment does not disappear unless res judicata has occurred or a public prosecution has been instituted.

Since the appeal by the prosecutor to the same purport is well-grounded, the judgment of the court below is reversed and it is again decided as follows.

Criminal facts

On June 30, 2016, the Defendant was sentenced to six months of imprisonment for fraud, etc. at the Seoul Central District Court, and the judgment became final and conclusive on October 17, 2016.

The defendant borrowed KRW 162 million from the victim B, and around November 19, 2008, the defendant told that he will pay up until July 14, 2009, when he provided the secured name D of the date of issuance of the Dispute Resolution Co., Ltd., which is December 20, 2008.

Since then, the defendant's failure to pay the above borrowed money, the victim said that he would make a payment of the above borrowed money, so the defendant is Seoul around July 14, 2009.