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The prosecutor's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. In light of the fact that the Defendant, by mistake of fact, paid KRW 100,00 to the victim F and agreed, could have recognized that the Defendant had an intention to obtain unlawful acquisition, the lower court acquitted the Defendant of the embezzlement of possession departing articles among the facts charged in the instant case.
B. The sentence sentenced by the lower court (one year and six months of imprisonment, two years of probation (80 hours of community service)) is too uneasy and unfair.
2. Determination
A. (1) The summary of this part of the facts charged and the summary of this part of the facts charged by the lower court’s judgment are as follows: “The Defendant, around August 29, 2015, did not take necessary procedures, such as acquiring the locks lost by the Victim F in Gangseo-gu, Seoul, the Gangseo-gu, Gangseo-gu, Seoul, about August 29, 2015, and returned them to the victim, and embezzled it on his own thought.
In light of the fact that the defendant was holding F's wallets in its original condition, which includes credit card and driver's license, the court below has persuasive power against the defendant's defense that he was holding the above wallets on the following day.
On the other hand, it was judged that it was insufficient to prove that the defendant had an intention to obtain illegal acquisition.
(2) The crime of embezzlement of deserted articles from one’s possession is completed by the act of acquiring possession, such as lost property, with the intention of acquiring unlawful acquisition. The prosecutor must prove that there is an act of embezzlement as an act of realizing an intent to acquire unlawful acquisition, and such evidence should be based on strict evidence with probative value, which makes it difficult for a judge to have a reasonable doubt (see Supreme Court Decision 2004Do8154, Jan. 27, 2005). In light of the records, a thorough examination of the evidence of this case should be conducted in light of the records, unlike the defendant’s statement, prior to the Defendant’s appearance around August 29, 2015.