beta
Text
The prosecutor's appeal is dismissed.
Reasons
1. The gist of the grounds of appeal is that the Defendant, although there is no intention or ability to repay the loan, by deceiving the damaged company and by deceiving the damaged company to remit 2.5 million won of the loan from the victimized company.
2. Determination
A. On July 10, 2013, the Defendant agreed to borrow KRW 2.5 million from the call loan, a victimized company, and to repay up to July 31, 2018.
However, in fact, the Defendant did not have any property equivalent to KRW 1.5 million per month, and there is a financial institution’s obligation equivalent to KRW 30 million per month, and thus, the Defendant has to reimburse the amount equivalent to KRW 1.5 million per month, and even if having obtained credit loans from the damaged company, there was no intention or ability to pay KRW 79,500 per month the amount agreed to be repaid to the victimized company.
As above, the Defendant, by deceiving the damaged company, received 2.5 million won from the victimized company to the Defendant’s single bank account as a loan, and acquired it by fraud.
B. The judgment of the court below 1) The issue of whether fraud is established through the deception of the borrowed money is determined at the time of borrowing. Thus, if the defendant had the intent and ability to repay the borrowed money at the time of borrowing, even if the defendant did not repay the borrowed money thereafter, this is merely a non-performance under civil law, and criminal fraud is not established. Meanwhile, unless the defendant does not confession, the existence of the criminal intent of defraudation, which is a subjective constituent element of the crime, shall be determined by comprehensively taking into account objective circumstances such as the defendant's financial power, environment, contents of the crime, transaction, the process of execution of transaction, and relationship with the victim (see Supreme Court Decision 95Do3034, Mar. 26, 1996). In addition, the lending company shall share credit information with one another or easily grasp the debtor's credit standing or ability to repay by means of a self-credit investigation, but it shall not be paid.