The appeal by the defendant and the prosecutor shall be dismissed.

1. The court below rejected the application for compensation by the applicant for compensation. Since the applicant for compensation cannot file an objection against the judgment dismissing the application for compensation pursuant to Article 32(4) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, the above application for compensation became final and conclusive immediately, the part of the court below's rejection of the above application for compensation in the judgment below is excluded from the scope of the judgment of this court

2. Summary of reasons for appeal;

A. Defendant 1) Although the Defendant erroneously paid money exceeding KRW 7,230,000 to the victim, the lower court recognized only the victim’s statement as the amount of 2,250,000 as the victim’s repayment.

2) The Defendant, by misapprehending the legal doctrine, has been fully repaid to the victim until he saws with the victim, and there is no intention to commit the crime of defraudation.

3) The sentence of the lower court’s improper sentencing (4 months of imprisonment) is too unreasonable.

B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

3. Determination

A. The Defendant stated the grounds for appeal on the first trial date at the trial of the first instance court as “misunderstanding of facts, misunderstanding of legal principles and improper sentencing,” and among them, the lower court acknowledged the amount of reimbursement different from the facts.

However, the amount of reimbursement is not whether it is a crime or not, but merely the argument on the sentencing data, and thus, the above argument is regarded as an unfair argument for sentencing.

shall be examined together in this subsection.

B. The criminal intent of defraudation, which is a subjective constituent element of fraud determination as to the Defendant’s assertion of misunderstanding the legal doctrine, should 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 transaction performance, unless the Defendant is led to the confession. The criminal intent is not a conclusive intention but a dolusent intention (see, e.g., Supreme Court Decision 97Do2630, Jan. 20, 198). The facts and circumstances that can be recognized by the lower court and the evidence duly adopted and investigated by the trial court are as follows.