All appeals by prosecutors are dismissed.

A. In relation to Defendant 1’s assertion of mistake of facts on February 3, 2009 (Article 1 of the lower judgment on the charge of fraud), the Defendant cannot be deemed to have committed deception itself, since it delivered KRW 50 million received from the victim according to the initial promise to the operator of the operating state and used it for stock investment, and thus, it cannot be deemed that there was a deception itself. In other words, the lower court guilty of this part of the charges.

B) On March 31, 2010, with regard to fraud (Article 2 of the judgment of the lower court, the Defendant heard that 5.8 million won needs to be returned from the operator of the operating week, and received 5.5.8 million won from the victim according to the above order, and thus, it cannot be deemed that there was a deception itself. Thus, the judgment of the lower court which found the Defendant guilty of this part of the facts charged was erroneous in misunderstanding of facts. 2) Even if the Defendant was guilty of all the facts charged, the lower court’s punishment (two years of suspended sentence for October, and 120 hours of community service order) declared against the Defendant is too unreasonable.

B. The sentence imposed by the prosecutor by the court below against the defendant is too unfortunate and unfair.

2. Determination

A. 1) On February 3, 2009, the Defendant’s assertion of mistake of facts was made by fraud (as to the facts constituting the lower judgment’s crime paragraph (1), the following circumstances revealed by the evidence duly adopted and investigated by the lower court, i.e., the victim consistently from the investigation stage to the lower court’s order, i.e., “at the time when the Defendant served in the military, he/she made a stock investment in the military within his/her workplace, and cannot be said to have been a soldier’s shares at the present time, because he/she did not make a soldier’s shares at the time of his/her military service.” The victim’s investment in the stocks will be linked to the preemptive to the amount of money to be invested.