The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. In fact, the Defendant merely borrowed money from the damaged party for the purpose of raising the guidance money to be paid to him/her, as the members of the fraternity that he/she operated did not pay the guidance money, and did not borrow money from the damaged party in relation to the operation of the standing office as stated in the instant facts charged.

In addition, the defendant had no intention or ability to repay the borrowed money of this case, and there was no intention to commit the crime of defraudation against the victim.

However, the court below found the defendant guilty of the facts charged in this case. The court below erred in the misapprehension of facts.

B. The sentence of the lower court that is unfair in sentencing (an amount of five million won) is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts, the Defendant also asserted the above assertion in the lower court.

The court below rejected the defendant's assertion and found the defendant guilty of the facts charged of this case on the ground that the defendant did not have the intent or ability to repay, and the defendant acquired money from the damaged person in the same way as the facts charged of this case stated.

Examining the evidence duly adopted and examined by the court below, the above judgment of the court below is just, and there is no error of law by mistake of facts as alleged by the defendant.

B. As to the wrongful assertion of sentencing, the sentencing is based on the statutory penalty, and the discretionary determination is made within a reasonable and appropriate scope, taking into account the factors constituting the conditions for sentencing as prescribed in Article 51 of the Criminal Act.

However, considering the unique area of sentencing of sentencing of the first instance that is respected under the principle of trial priority and the principle of directness taken by our criminal litigation law and the nature of the ex post facto review of the appellate court, the sentencing of sentencing of the first instance is discretionary when comprehensively considering the factors and sentencing criteria in the first instance sentencing trial process.