The prosecutor's appeal is dismissed.

Summary of Grounds for Appeal

The defendant's failure to notify the victim of his specific economic situation constitutes a deception, and the victim has lent KRW 130 million to the defendant by implementing the loan in its name because it belongs to such deception, so it can be recognized that the defendant has committed the crime of fraud.

Nevertheless, the judgment of the court below that acquitted the defendant is erroneous.

2. Determination

A. Whether fraud is established or not is determined at the time of such act. As such, if a borrower has an intent and ability to repay money at the time of lending money in a loan for consumption, then he/she did not repay money thereafter.

This is merely a non-performance of civil liability, and criminal fraud is not established.

Therefore, in a loan for consumption, in case where the lender recognizes the credit standing of the lender and the borrower in a loan for consumption, and is likely to expect or be sufficiently anticipated the risk of future default or impossibility of repayment due to such personal relationship as the relationship between the lender and the borrower and the continuous transaction relationship, etc., barring any other circumstances, such as the borrower's expression of false facts as to material facts that may determine whether to grant a loan for consumption with respect to the detailed intent of repayment, ability to repay, conditions of loan, etc. at the time of the loan, the borrower deceivings the lender about his ability to repay with the sole fact that the borrower

shall not be readily concluded that there is a criminal intent to obtain fraud from the borrower.

(see, e.g., Supreme Court Decision 2012Do14516, Apr. 28, 2016). (B)

In full view of the circumstances stated in its holding, the lower court, based on the evidence presented by the prosecutor, intends or ability to cause the victim to go out of the burden of the loan obligation by resolving the loan obligation ultimately on only one month, even if the Defendant borrows the money borrowed in the name of the victim.