The prosecutor's appeal is dismissed.

Summary of Grounds for Appeal

According to the evidence submitted by the prosecutor of mistake of facts, the Defendant borrowed each money listed in the original judgment (1) from the victim H without intent to repay it.

However, the court below rendered a not guilty verdict on this part of the facts charged. The court below erred by misunderstanding facts and affecting the conclusion of the judgment.

The sentence (three million won of a fine) imposed by the court below on the defendant is too uneasible and unfair.

Judgment

The crime of fraud against the assertion of mistake is established by deceiving another person, omitting it into mistake, inducing such act of disposal, and thereby receiving property or pecuniary benefits. Therefore, there should be causation between deception, mistake, and property disposal act.

(See Supreme Court Decision 200Do1155 Decided June 27, 2000, etc.). Whether a certain act constitutes a deception that causes a mistake to another person, and whether there exists a causal relationship between such deception and the disposal of property ought to be determined generally and objectively by taking into account the specific circumstances at the time of the act, such as the transaction, the other party’s knowledge, character, experience, and occupation.

(see, e.g., Supreme Court Decision 87Do1872, Mar. 8, 1988). In addition, the intent of deception as an intentional act of deception should be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial power before and after the commission of the crime, the environment, the contents of the crime, the process of transaction, and the relationship with the victim, unless the Defendant makes a confession.

(See Supreme Court Decision 95Do3034 delivered on March 26, 1996). Whether fraud is established upon meeting the above requirements should be determined at the time of the act. Thus, if a borrower has intent and ability to repay money at the time of lending money in a loan for consumption transaction, then the borrower has failed to repay money thereafter.

This is merely a non-performance of civil liability, and criminal fraud is established.