A. The judgment of the court below that found the Defendant guilty of the facts charged in this case, despite the absence of the intention of theft, is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

B. The punishment sentenced by the lower court (2 million won) is too unreasonable.

2. Determination

A. The following circumstances acknowledged by the lower court’s duly adopted and investigated evidence regarding the assertion of mistake of facts: ① the Defendant’s act of taking the mobile phone in the same color as that of the victim’s cell phone at the time of the instant case into convenience store is confirmed on the CCTV screen; ② the Defendant is well aware of whether the Defendant returned to the victim immediately after taking the mobile phone and obtained the mobile phone.

Since then, when the victim requested the confirmation of CCTV along with the police officer, the fact that the victim was keeping the mobile phone does not speak, and ③ the defendant did not talk about the fact that the victim was keeping the mobile phone at the time of the instant case, the victim's mobile phone is a verification color, and the mobile phone that the victim was lost can not be an actual owner, and this talks.

However, as seen earlier, it is difficult to understand that the Defendant’s cell phone kept by the Defendant is red, and even if the Defendant’s family affairs were to be the black color of the body body, rather than the back of the case, it is hard to understand the fact that the Defendant acquired and kept the cell phone at the time when the victimized person took it together with the police officer. ④ Since then, the cell phone stored in the Defendant’s cell phone and submitted to the investigation agency is entirely different from the lost cell phone.