The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal seems to have been difficult to finance in the second half of 2011.

When the defendant borrowed money from the victim, it is expected that the situation of the defendant is difficult to continue to make improvements without any special circumstances unless there is a change in the situation. In this situation, it seems that the defendant borrowed money from the victim to repay the party's obligations.

In light of the evidence of value-added tax base and other taxation data on the defendant's business expertise store operated by the defendant, the defendant can be seen that there was a significant decrease in income from July 2012.

In a situation where financial rights and obligations between the Defendant and his husband at the time of borrowing the instant loan exceed KRW 400 million, considering loan and the agent premium owned by the Defendant and his husband, it would not have been easy to repay the instant loan.

Comprehensively taking account of these circumstances, it is reasonable to deem that the Defendant did not have the intent or ability to repay the borrowed amount at the time of borrowing the loan.

Therefore, the lower court erred by misapprehending the facts and rendering a judgment.

2. Determination

A. The lower court acquitted the Defendant on the following grounds.

1) The establishment of fraud through the deception of the borrowed money shall be determined at the time of the loan. Thus, even if the defendant had the intent and ability to repay the borrowed money at the time of the loan, if the defendant did not repay the borrowed money thereafter, it is merely a civil default, and it cannot be said that a criminal fraud is established. Meanwhile, the existence of the criminal intent of the defraudation, which is a subjective constituent element of the crime, shall be determined by taking into account the objective circumstances such as the defendant's financial history before and after the crime, environment, content of the crime, the process of the transaction, the relationship with the victim, etc., unless the defendant makes a confession (Supreme Court Decision 208.2.