The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal is that the investigative agency has a liability of KRW 100 million more than the facts acknowledged by the court below at the time of borrowing money from the complainants, and that the value of the apartment held was less than KRW 30 million than the value recognized by the court below. Thus, it can be sufficiently recognized that the defendant had no intent and ability to repay due to the excess of the debt at the time of borrowing the money.

Nevertheless, the court below found the defendant not guilty on the ground that there is no proof of crime, and the court below erred by misunderstanding the facts and affecting the conclusion of the judgment.

2. Determination

A. Relevant legal principles 1) The establishment of a crime of fraud by defraudation of the borrowed money shall be determined as at the time of borrowing. Thus, if the defendant had the intent and ability to repay at the time of borrowing, he/she could not thereafter repay the borrowed money

Even if this is merely a mere non-performance of civil liability, and it cannot be said that criminal fraud is established. The existence of the criminal intent of defraudation, a subjective constituent element of fraud, should be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history before and after the crime, environment, contents of the crime, the process of transaction, and relationship with the victim, unless the defendant confessions (see Supreme Court Decision 95Do3034, Mar. 26, 1996, etc.). Furthermore, the recognition of fraud of the borrowed money against the debtor who wishes to be exempted through the personal rehabilitation procedure may result in plucking, breaking, etc. of the debtor's intent to economic rehabilitation (see Supreme Court Decision 2007Do8549, Nov. 29, 2007). Meanwhile, the prosecutor bears the burden of proof for the criminal facts raised in a criminal trial, and the recognition of conviction is true to the extent that there is no reasonable doubt for a judge.