The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. The loan in this case of mistake of facts is merely borrowed by the defendant for the use of the funds of the company operated by the defendant as the partnership with B, not for the return of the personal debt to the defendant, and it is not for the purpose of the return of the personal debt to the defendant. On November 2016, the dispute over the settlement of accounts between B and Dong has occurred and the victim has not been paid the interest and the loan to the victim

In light of the fact that the Defendant repaid the obligation to other creditors around that time, the Defendant had the intent and ability to repay the instant money at the time of borrowing.

B. The lower court’s sentence of unreasonable sentencing (two months of imprisonment, two years of suspended execution, and one hundred and twenty hours of community service order) is too unreasonable.

2. Determination

A. In full view of the following circumstances that can be recognized by mistake of facts and evidence duly adopted and investigated by the court below and the trial court, the defendant can be recognized the fact by deceiving the victim without the intent or ability to repay, so this part of the defendant's allegation is without merit.

① At the time of borrowing the instant money from a third party, the Defendant borrowed a deposit of KRW 125 million from a third party, and was additionally liable for KRW 20 million to KRW 30 million in the process of acquiring “L”.

At the time, the operational performance of “H” was the enemy, and in order for the Defendant to operate the two massage parlors, the cost of KRW 60 million per month is required. The profit was limited to KRW 6 million per month, and there was no particular property for the Defendant other than the above businesses.

② The Defendant stated in the prosecutorial office that the sales of the massage treatment establishment was appropriated for operating funds by lending money at a fixed rate with interest rate when the sales of the massage treatment establishment falls short of operating expenses.

(3) The Defendant asserts that the principal could be fully repaid even if the victim has deferred the payment of the rent or management fee of the massage practice place at the end of three months prior to the end of the period, but the principal shall be prevented from returning the debt.