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All appeals filed by prosecutors and defendants are dismissed.
Reasons
1. Summary of both appeals;
A. Prosecutor’s grounds for appeal: Unfair sentencing
B. Defendant’s grounds for appeal: The value of business property, such as goodwill, trademark right, franchise business right, etc. of “G” operated by the Defendant at the time of mistake of facts and misapprehension of legal principles, has reached a considerable amount of one billion won; in light of the above, the Defendant had sufficient ability to repay.
It does not receive money with the intent to obtain money by fraud.
2. Determination on the grounds for appeal
A. (1) According to the evidence duly admitted and examined by the court below as to the Defendant’s assertion of mistake of facts and misapprehension of legal principles, the Defendant was found to have received KRW 100 million in total from the said victim on two occasions without notifying the Defendant of such circumstance or without paying any property or debt, despite not having the ability to normally operate “G” coffee specialty, and even if the Defendant borrowed money from the Defendant’s N, he did not have the ability to properly manage it. In light of the above facts, the Defendant was aware of the fact that, at the time of receiving money from the victim, the Defendant was unable to fully pay the money to the Defendant at the time.
Therefore, there is no obstacle to the establishment of fraud.
(2) Each fraud against the victim Q and R is acknowledged by the evidence duly adopted and investigated by the lower court, namely, ① at least KRW 400 million was responsible for the Defendant’s debt at the time of concluding the victim Q and R’s equity investment agreement with the victim, but the said victims did not mention all of the said debt when soliciting the said victims to make an investment in the coffee specialty; ② the equity investment agreement provides detailed provisions on the establishment of the corporation and investment funds, securing equity in proportion to the investment funds, and distributing profits, as well as the case where the progress of the business through the establishment of the corporation is impossible.