The prosecutor's appeal is dismissed.

1. Summary of the facts charged in this case and the judgment of the court below

A. The summary of the facts charged in the instant case is that the Defendant borrowed the name of D Co., Ltd. with H as the representative director (hereinafter “D”), and received a contract from the victim E, the owner of the building, for the construction of the unmanned telecom to F and G (hereinafter “instant unmanned telecom”). The victim E wired the construction price to D’s account or paid the construction price to H. The Defendant submitted documents on the payment of the instant unmanned telecomcom, along with the claim for the construction price, to D, he remitted it directly to the subcontractor or remitted the construction price to the Defendant’s account.

On January 20, 2012, the Defendant, at the J office located in 1, 2012, ordered E to deliver 25 million won household checks to H, and remitted KRW 175 million to the account in the name of D, to the effect that “it is necessary to perform equipment, lighting, and interior works, which would have been completed, but the payment of KRW 300,000,000,000,000,000 to the victim E.

Since then, the defendant said that "The construction cost shall be paid to the subcontractor at the construction site of the K unmanned telecom, and the construction cost shall be paid in KRW 300 million."

However, in fact, even if the defendant received the construction cost from the victim E and H, he did not have the intention or ability to use 2.2 million won among them as the construction cost of K unmanned telecom, and rather, he was intended to use it for the studio construction being separately constructed by the defendant, and around that time, it was false and thereafter thereafter, he acquired the construction cost of 2.2 million won from the victim E, and received D’s total sum of 25 million won household checks of the above five million won household checks from H, and received 174 million won from the defendant’s account on the same day, and received 5 million won household checks of the same day.