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The judgment below
The guilty portion shall be reversed.
A defendant shall be punished by imprisonment for not less than eight months.
provided that this ruling has become final and conclusive.
Reasons
1. Summary of grounds for appeal;
A. The Defendant paid KRW 44,50,000,000 on November 30, 2007, which was within one month from the date on which the establishment registration of the instant root was completed, to the creditor F, and paid KRW 750,000,00 in total, respectively, on January 3, 2008; January 14, 2008; January 21, 2008; and January 15, 200,000, respectively.
Therefore, the Defendant did not have any criminal intent to acquire the Defendant, inasmuch as he fully repaid the principal amount of KRW 70,000,000, which is the actual amount of the security obligation of the establishment registration of the neighboring mortgage of the instant case.
Nevertheless, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.
B. Even if the conviction of an unreasonable sentencing is recognized, the lower court’s imprisonment (eight months of imprisonment) is too unreasonable.
2. Determination
A. 1) The criminal intent of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, and the process of performing transactions, insofar as the Defendant does not confession. The criminal intent is not definite intention but dolusent intent (see, e.g., Supreme Court Decisions 2007Do10416, Feb. 28, 2008; 2007Do8726, Aug. 21, 2008). Furthermore, the subjective element of the constituent element of the crime lies in cases where the possibility of the occurrence of the crime is uncertain and it is acceptable in light of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the lower court, and thus, the Defendant could have been aware of the establishment registration of the crime of this case from the victim and thus, it is reasonable to deem that the Defendant had been aware that the Defendant had been aware of it.