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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. In fact, the Defendant: (a) borrowed a total of KRW 229 million from the victim E to provide the victim with adequate security; (b) was able to operate the restaurant at the time of the above loan; and (c) paid considerable interest to the victim after the above loan; and (d) there was no intention to commit fraud.
Nevertheless, the court below erred by misapprehending the legal principles as to the facts charged of this case.
B. The punishment sentenced by the lower court (one year of imprisonment) is too unreasonable.
2. Determination
A. Determination on the assertion of mistake of facts 1) The criminal intent of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of performing transactions before and after the crime unless the Defendant makes a confession, etc. The criminal intent is sufficient not to be conclusive intention but to do so, and in the civil monetary lending relationship, the criminal intent of defraudation of the borrowed money can not be recognized immediately with the fact of default. However, in the event the Defendant borrowed money by pretending that it would have been repaid even though the Defendant did not have a clear intention to suggest or have no ability to repay within the due date of repayment as of May 13, 201 (see, e.g., Supreme Court Decision 2010Do18139, May 13, 2011) and each evidence duly admitted and investigated by the lower court and the lower court. In full view of the following circumstances, the Defendant can be fully recognized that the Defendant acquired KRW 29 million from the victim E at the time of the crime.
Therefore, the defendant's assertion that the court below erred by mistake is without merit.
A) At the time of borrowing money from the injured party, the Defendant borrowed money from the injured party, 150 million won as a debt of bank loans, and 150 million won as a debt of M, and other bonds.