The defendant's appeal is dismissed.

Summary of Grounds for Appeal

The Defendant continued to engage in the transaction with the victim D Co., Ltd. (hereinafter referred to as the “victim”) while operating a store in the judgment of the court below (hereinafter referred to as the “instant store”). There was no intention to deceive the damaged company as to the loan in the judgment of the court below.

Nevertheless, the lower judgment that found the Defendant guilty of the facts charged of this case erred by misapprehending the facts.

Judgment

The intention 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, contents of the crime, process of transaction, relationship with the victim, etc. before and after the crime unless the defendant confessions.

In the civil monetary lending relationship, the intention of defraudation of the borrowed money can not be acknowledged, but in the case of borrowing the money by pretending to be repaid even though the defendant has no intention of full repayment or has no ability to repay within the due date as promised at the time of repayment, the intention of defraudation may be recognized.

(See Supreme Court Decision 2017Do20682 Decided August 1, 2018). In light of the following facts that can be recognized by evidence duly admitted and investigated by the court below and the circumstances that can be known therefrom, the Defendant, despite having no intent to repay or having no capacity to repay within the due date for repayment, by deceiving the damaged company as if he were to repay, and thus, the Defendant borrowed money from the victimized company as stated in the judgment of the court below, it is reasonable to deem that the Defendant had the intent to defraud the borrowed money.

Therefore, the defendant's assertion is without merit.

On or before June 11, 2015, when the Defendant was granted a loan from the victimized company, the sales tax base amount for calculating the value-added tax of the store of this case shall be 51,481,00 won (from January 1, 2015 to June 30, 2015), 59,646,00 won, and 59,646,000 won from July 1, 2015 to December 31, 2015.