가. 사실오인 피고인은 피해자 E으로부터 2,600만 원을 차용하고 시줏돈으로 1,000만 원을 받은 사실은 있으나, 공소사실 기재와 같이 피해자들에게 피고인 아들 명의로 된 주택을 매도하겠다고 속여 피해자들로부터 6,400만 원을 교부받은 사실은 없다.

Nevertheless, the judgment of the court below which convicted the charged facts of this case is erroneous in misconception of facts.

B. The sentence imposed by the lower court (ten months of imprisonment) is too unreasonable.

2. Determination

A. The following circumstances are acknowledged by the judgment of the court below and the evidence duly admitted and investigated by the court below on the assertion of mistake of facts: ① the victims consistently stated in the investigative agency and the court below that they would purchase the house located at 80,000,000 won in the same Dong-si H located in the name of the defendant (hereinafter “the instant house”) from the defendant at the investigative agency and the court below; ② the bond company I, upon introduction of the defendant, stated in the investigative agency and the court below that “the victims agreed to purchase the house from the defendant at the time of the above loan, and were aware that the above loan would be used for the purchase of the house at the time of the above loan,” and also in the investigative agency and the court of the court below, even if the defendant had been aware of the fact that the victims would purchase the house at the time of the loan to the defendant, and that the victims would purchase the house at the time of the loan to the defendant, I would not know that they were present at the investigative agency and stated again from the defendant.