사기
The prosecutor's appeal is dismissed.
1. In full view of the evidence that correspond to the facts charged in the instant case, the gist of the grounds for appeal (in fact-finding) is as follows: (a) the Defendant was planned to immediately retire from the Defendant, a stock company E (hereinafter “E”) or at least the Defendant was ordered to resign from the Defendant upon receiving a resignation recommendation from the said company; (b) thus, the Defendant did not have any intent or ability to repay the said money even if he borrowed money from the victim.
2. The recognition of facts constituting an offense in a criminal trial ought to be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to fully reach the extent that the defendant’s assertion or defense is inconsistent or unreasonable, it should be determined in the interests of the defendant even if there is suspicion of guilt, such as where the defendant’s assertion or defense is inconsistent or unreasonable.
(see, e.g., Supreme Court Decision 2010Do14487, Apr. 28, 2011). In addition, in a case where the first instance court rendered a judgment not guilty of the facts charged on the ground that there is insufficient evidence to exclude reasonable doubt after undergoing the examination of evidence, such as the examination of witness, in light of the fact that the criminal appellate court has the character as a post-trial trial even after deceiving the Defendant, and the spirit of substantial direct cross-examination under the Criminal Procedure Act, etc., the first instance court may raise probability or doubt as to the facts that
Even if it does not reach the extent of sufficiently resolving the reasonable suspicion caused by the first instance trial, such circumstance alone alone alone does not readily conclude that there was an error of mistake in the determination of facts in the first instance court that lack of proof of a crime (see Supreme Court Decision 2015Do11428, Feb. 18, 2016). The lower court, based on the circumstances in its judgment, submitted by the prosecutor.