There has not been deceiving the client that he will deliver goods within 10 days when he deposits the price of goods.

It is only a failure to perform the obligation that is not to deliver the goods corresponding to the money deposited in the head of the Tong, and there is no intention to acquire it by fraud.

The punishment sentenced by the court below (10 months of imprisonment, 2 years of suspended sentence) is too unreasonable.

Judgment

Comprehensively taking account of the following circumstances revealed by the evidence duly adopted and investigated by the lower court regarding the assertion of mistake, the lower court may recognize the fact that the Defendant deceivings the victim as stated in the facts charged, thereby deceiving the victim, thereby deceiving the victim of KRW 89,587,00.

In light of the contents of the judgment of the first instance and the evidence duly examined by the first instance court, the first instance court’s determination on the credibility of the statement made by the first instance witness was clearly erroneous.

Unless there exist extenuating circumstances to see the credibility of the statement made by a witness of the first instance trial and the result of an additional examination of evidence by the time the appellate trial is final and conclusive, the appellate court should not reverse without permission the first instance judgment on the sole ground that the first instance judgment on the credibility of the statement made by a witness of the first instance trial is different from the appellate court’s judgment (see, e.g., Supreme Court Decisions 2006Do494, Nov. 24, 2006; 2017Do7871, Mar. 29, 2018). The victim is consistently trading with the Defendant from the investigative agency to the court of the lower court to the court of the trial.

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