The prosecutor's appeal is dismissed.

The summary of the grounds for appeal (misunderstanding of facts and improper sentencing): The defendant had the intent to illegally obtain the key to the bath and soup clothes managed by the victim E, but the court below held that the theft crime of the defendant was not completed.

The judgment of the court below is erroneous in the misapprehension of facts.

Sentencing : The sentence (4 months of imprisonment) imposed by the court below on the defendant is too unhued and unfair.

Judgment

In a criminal trial on the assertion of mistake of facts, the recognition of facts should be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to sufficiently reach the extent that it would lead to such conviction, even if there is suspicion of guilt, such as inconsistency with the defendant’s assertion or defense or non-competence, it should be determined in the interests of the defendant (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 201). In addition, in light of the fact that the appellate court is in the nature of a post-trial trial even after its appearance and the spirit of substantial direct deliberation as prescribed in the Criminal Procedure Act, it is insufficient for the first instance court to exclude reasonable doubt after undergoing the examination of evidence, such as examination of witness.

In a case where a not-guilty verdict is rendered on the facts charged, if it does not reach the extent that it can sufficiently resolve the reasonable doubt raised by the first instance trial even if the probability or doubt about some opposing facts may be raised as a result of the appellate trial’s examination, there is an error of mistake in the determination of facts in the first instance judgment, which lacks proof of crime solely

Clearly concluding that the facts charged are not guilty (see Supreme Court Decision 2015Do11428, Feb. 18, 2016). The lower court’s determination of the instant case is as indicated in its reasoning.