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The defendant shall be innocent.
Reasons
1. The Defendant, as the representative director of the Company B engaged in mechanical facility construction business, completed and became aware of the victim C by completing the process of the same university management manager.
On February 23, 2017, the Defendant made a false statement to the effect that “The Defendant would repay the money to the Defendant until February 2017, 2017, if he/she borrowed the money to pay the Company’s taxes to the Defendant at the office of the E University F 13th floor located in Nam-gu, Busan.” If he/she did not pay taxes, he/she would lend the money to the Defendant.”
However, at the time of fact, the Defendant failed to make an investment and failed to meet the financial conditions of the company, was suspended from the construction license, and there was no particular income, and even if he received money from the victim, he was thought to be used as the card payment, so there was no intention or ability to repay the money to the victim.
Nevertheless, the Defendant, by deceiving the victim, received KRW 15 million from the victim to the corporate bank account (H) in the name of G Co., Ltd. on the same day.
2. Determination
A. The establishment of a crime of fraud through deception shall be determined at the time of borrowing. Thus, even if the defendant had the intent and ability to repay the loan at the time of borrowing, if the defendant did not repay the loan thereafter, this is merely a non-performance under civil law, and it cannot be said that a criminal fraud is established. The existence of a criminal intent of defraudation, which is a subjective constituent element of a crime of fraud, shall be determined by taking full account of objective circumstances such as the defendant's re-performance before and after the crime, environment, details and contents of the crime, the process of performing the transaction, and relationship
(See Supreme Court Decision 95Do3034 delivered on March 26, 1996). Meanwhile, the conviction leads to a judge’s conviction that the facts charged are true to the extent that there is no reasonable doubt.