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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for two years.
Reasons
1. On December 21, 2010, the Defendant entered into a contract with E to jointly operate a “F hotel” operated by Pyeongtaek-si D (hereinafter “instant hotel”) on a condition that he/she paid KRW 270 million to E under the pretext of the contract deposit, but failed to pay the intermediate payment and the balance, thereby cancelling the contract.
As the Defendant did not receive the above down payment of KRW 270 million from E, he had the intent to recover the amount of the down payment from other investors by coloring the said down payment. On June 2012, 2012, the Defendant tried to transfer the hotel management right of KRW 3.3 billion to the victim I at the H Co., Ltd. located in Mapo-gu Seoul Metropolitan Government (hereinafter “H”) office (hereinafter “H”). The Defendant would jointly take over and operate the hotel as well as take over and operate the hotel. As such, there would be considerable profits. If the Defendant pays the down payment of KRW 270 million and the first intermediate payment of KRW 350 million,00,000,000,000 in total, the remainder of the intermediate payment and the balance will be borne by the victim.
“.....”
However, in fact, the Defendant did not have any special property or income at the time, and the Defendant was unable to repay the amount of the loan for apartment with the Defendant’s wife’s apartment as collateral, and there is no economic situation enough to sell the apartment at will on April 2012. Thus, even if the Defendant paid part of the hotel down payment and intermediate payment, the remainder of the intermediate payment and the intermediate payment promised to acquire the right of management of the hotel from E and did not have the intent or ability to operate the hotel jointly with the victim, as well as the Defendant paid to E.
Since the victim recognized KRW 270 million as KRW 300,000 and decided to substitute for the contract deposit concluded with the victim, the victim's delivery of KRW 200,000 to E as the contract deposit, and instead, he/she individually uses the defendant's debt repayment, etc.