The guilty part shall be reversed.

A defendant shall be punished by imprisonment for not less than eight months.

The prosecutor's appeal is dismissed.

A. Defendant 1) As to the fraud against the victim’sO, the Defendant opened a restaurant with the trade name “G” around May 2008, and the victimO invested KRW 170 million in order to operate the restaurant together with the Defendant.

Until January 2009, the Defendant paid monthly profits to the victim according to the Dong business contract. However, due to the aggravation of the game caused by the AI incident, the Defendant failed to pay profits to the victim by significantly decreasing the monthly sales of the restaurant, and attempted to pay profits to the victim by changing the type of business or opening a new store. However, as unexpected circumstances occur, the restaurant business was discontinued.

In other words, the victim is merely a partner who incurred losses as a result of the business failure while operating a restaurant business together with the defendant, and the defendant is not deceiving the victim, thereby deceiving the victim with 170 million won.

Nevertheless, the court below which found guilty of this part of the facts charged has erred by misunderstanding of facts that affected the conclusion of the judgment.

B. As to the fraud of the victim Q Q, the victim Q decided to run the same business with the defendant to recover the existing investment funds from the defendant, and among the defendants, the defendant was to bear the test cost.

However, at the time of the above opening of the business, the Defendant did not have the funds to invest in the interior, and said funds were said to be leading to the victim Q Q. Accordingly, the Defendant borrowed KRW 17 million for the interior cost from the victim Q.

In addition, although the above loan was planned to repay the E at the selling price for the E branch, unlike the expected sales price, it cannot be said that the defendant had no intention to repay because it was closed due to the business depression, and it cannot be said that the defendant had no intention to repay.

In addition, the defendant started the E branch office after July 25, 2010 to September 17, 2010.