The prosecutor's appeal is dismissed.

1. According to the summary of the grounds for appeal (in fact-finding or misapprehension of the legal principle), the Defendant borrowed the instant money from the victim, and even though the Defendant could have sufficiently recognized that there was a criminal intent to acquire the instant money due to the lack of ability to repay, there is no clear and dolusible intent to repay, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby acquitted the facts charged in this case.

2. Determination

A. The summary of the facts charged in the instant case is the actual operator of C, a real estate consulting company.

At the end of October 2011, the Defendant, at the office of the fifth floor of the Gangnam-gu Seoul Metropolitan Government DD Building, saying, “I would immediately repay the money if you lend the money,” and received KRW 1 million from the victim to the above C’s account under the name of the said C, and around that time, the Defendant received remittance of KRW 25 million from the said account on November 2, 201 to the said account by stating that “I would repay the money if you lend the money to the victim until November 15, 201.”

However, the Defendant was in arrears with the tax of approximately KRW 1.1 billion, and was liable for financial institutions equivalent to KRW 50 million, and was not fully paid by employees due to economic difficulties due to other special assets or no profit. Therefore, even if the Defendant borrowed money from the victim, there was no intent or ability to pay the money normally.

The Defendant received from the victim the money of KRW 26 million, including KRW 1 million on the 31st day of the same month, and KRW 25 million on the 11.2.2.2.5 million on the 31st day of the same month from the victim, and acquired it by fraud.

B. In light of the following, the conviction in a criminal trial ought to be based on evidence with probative value that leads a judge to have the conviction that the facts charged are true beyond a reasonable doubt. As such, the prosecutor’s proof does not sufficiently reach the extent that such conviction would lead to such conviction.