The prosecutor's appeal is dismissed.

1. Although the Defendant borrowed money from the victim and explained that it is necessary to carry out a Chinese-related entertainment planning project, the Defendant used most of the borrowed money regardless of its purpose of loan by paying personal debt, corporate employees’ salary, living expenses, and tax payment. Since the financial situation of the Defendant’s company at the time is not sufficient, the Defendant did not have the ability to pay interest on borrowed money or repay borrowed money to the victim, the lower court found the Defendant not guilty of the facts charged of the instant case, which affected the conclusion of the judgment by misapprehending the legal doctrine.

2. Determination

A. The Defendant is an internal director of B Co., Ltd. (hereinafter “instant company”) established around March 2012 for performance planning, production, and entertainment service business, etc.

On November 8, 2016, the Defendant made a false statement to the victim E, “A business that is different from the one in which it is currently going into existence.” The Defendant sent a female group, etc. to China and let it hold a public performance on the club, etc. (hereinafter “instant business”). The business item is a large stay, and if the operating fund is short, the Defendant would have to pay it in KRW 150 million for 7 months, and the interest will be paid in 150,000 won per month.”

However, the defendant did not have a specific plan for the above Chinese business, and the above money was thought to be used as a monthly salary for the employees of the company, repayment of the existing company's obligations and taxes, living expenses, etc. At the time, the defendant was liable for a debt of at least KRW 30 million, and the above company was merely liable for a debt of at least KRW 2 billion, and it was borrowed money from the victim because there was no particular asset.