The judgment of the first instance shall be reversed.

The sentence of sentence against the defendant shall be suspended.

1. The judgment of the court on February 1, 200 and the decision of the court on the erroneous determination of the gist of the grounds for appeal (the deceased's title trust of the real estate in this case was the property owned by the deceased, and the defendant, as the executor of the will of the deceased at the time of recovery, expressed that the victim would have been forced to have the registration right of this case deducted from the deceased, so the "other's property" is not stolen, but the defendant did not have any criminal intent to larceny) and unreasonable sentencing.

A. As to the assertion of mistake in fact, a theft under the Criminal Act refers to the act of removing the possession of another person’s possession against the will of the possessor and moving it to his or her possession by a third party. Whether a certain object is occupied by another person is determined in consideration of the intention of control as a subjective element in addition to the scope of management or the possibility of factual management as an objective element. Ultimately, it shall be determined from a normative perspective in light of social norms by taking into account the size and form of the object, its identity, the temporal and spatial relationship between the possessor and the property, and other specific circumstances, etc. Even though the right to claim delivery, etc. under the agreement is recognized, it shall be established by the act of excluding possession against the will of the possessor, unless the possessor’s explicit and implied consent is recognized to the prior possession at the time of the commission.

(See Supreme Court Decision 2008Do3252 Decided July 10, 2008, Supreme Court Decision 2009Do5064 Decided February 25, 2010, and Supreme Court Decision 2010Do634 Decided April 26, 2012, etc.). Various circumstances recognized by the evidence duly adopted and investigated by the first instance court (see, e.g., Supreme Court Decisions 2008Do3252, Jul. 10, 2008; 2010Do6334, Apr. 26, 2012).