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The prosecutor's appeal is dismissed.
Reasons
1. According to the records of the grounds for appeal, even though the defendant did not have the intention or ability to pay the price normally, but was provided with health functional foods worth KRW 324.3 million at the market price from the victim, the court below erred by misapprehending the facts, and thereby acquitted the defendant.
2. Determination
A. A. Around June 30, 2010, the Defendant stated that “The Defendant will supply functional health foods to the victim’s office located in Dongdaemun-gu Seoul Metropolitan Government Dongdaemun-gu, and pay the price for the goods with promissory notes with no defect at any time and the per-house number table.”
However, the Defendant had already been in default on February 23, 2010, and the Defendant provided a promissory note and a check of shares with no particular property or financial resources to a large number of business partners in the absence of deposits, and was liable for the amount of KRW 200 million. Although the check of shares was issued in an amount equivalent to KRW 400 million but the bank was rejected due to the shortage of deposits, the Defendant had no intent or ability to pay the amount normally even if the promissory note and the check of shares were issued by the victims and received the delivery of functional health foods.
On July 24, 2010, the Defendant: (a) by deceiving the victim as above; (b) supplied Bluet in an amount equivalent to KRW 17 million at the factory located in Seongbuk-gun, Gyeongsung-gun; and (c) delivered a promissory note in an amount equivalent to the said amount; and (d) received health functional foods equivalent to KRW 324,30,000 at a total market price from July 1, 2010 to July 29, 201 in the same manner, as indicated in the list of crimes attached to the lower judgment, from July 1, 2010 to the same day.
Accordingly, the defendant was given property by deceiving the victim.
B. The lower court determined that the accusation of the victim C and the statement of C are inadmissible, and the lower court duly adopted and investigated by the lower court.