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The prosecutor's appeal is dismissed.
Reasons
1. The gist of the grounds for appeal is that the Defendant, at the time of receiving the clothing originals from the victim, was aware that it would not be able to pay the originals due to dolusent negligence, such as bearing a large amount of debt at the time of receiving the clothing originals, and further, the Defendant would not deliver the originals if the victim had known the economic situation of the Defendant. Therefore, according to evidence, the judgment of the court below which acquitted the Defendant on a different premise is erroneous and adversely affected the conclusion
2. Determination
A. In accordance with evidence duly adopted and examined by the lower court, the lower court acknowledged that the Defendant had suffered considerable economic difficulties at the time of receiving original parts from the victim, such as: (a) the Defendant failed to timely pay the original parts supplied by the victim to a third party on April 2016; (b) supplied them to a third party; and (c) paid approximately KRW 63 million to the other transaction parties; or used them as corporate operating expenses, etc.; and (d) the Defendant had been supplied with the original parts from the victim; (i) the Defendant had established “C” in around 2015, and continuously produced and supplied clothing until the closure of the place of business on May 2017; and (iii) recorded considerable sales in the year 2015 and 2016; and (iv) the Defendant received the original parts supplied by the victim as stated in the aforementioned facts charged at the time of the Defendant’s supply and delivery of clothing; and (iii) the Defendant did not receive or supplied clothing clothing from the Plaintiff at around 2016.
Even if the LAE purchased the remaining amount of the clothing supplied by the LAE, it is argued that if the LAE would have sold it, it would have been able to fully pay the difference to the victims (e.g., not less than 50 million won). In fact, the sales rate of the clothing supplied by the KAE around April 2016.