A. The defendant misunderstanding the facts merely cited a mobile phone in mind to return to the victim, and there was no intention of illegal acquisition.

B. The sentence of the lower court (an amount of KRW 1,00,000) that is unfair in sentencing is too unreasonable.

2. Determination

A. The judgment of the court below as to the assertion of mistake of facts is based on the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, namely, ① the defendant did not immediately notify the victim of the situation in which the victim moves to the cell phone at the time of the instant case, ② the defendant used the victim’s cell phone and went out of the court office without attempting to return it to the victim out of the instant case, ② the defendant did not receive the phone from the damaged person or seems to have taken out the above cell phone, ③ the defendant returned it to the victim before knowing that he was reported to the police at the trial, but according to each statement in the police interrogation protocol of the defendant, the defendant appears to have tried to return the cell phone to the victim after receiving the contact at the police station. ④ In light of the fact that the defendant led to the confession of all the facts charged in the instant case at the investigative agency and the court below, and such confession does not appear to have been caused by unfair pressure or meeting, it is sufficiently recognized that the defendant committed the theft of the victim, as stated in the instant facts charged.

The defendant's assertion of facts is without merit.

B. The Korean Criminal Procedure Act, which adopts the trial-oriented principle and the principle of direct determination as to the unfair argument of sentencing, has the unique area of the first deliberation as to the determination of sentencing, and in addition, in light of the ex post facto nature of the appellate court, there is no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance is discretionary.