The prosecutor's appeal is dismissed.

1. In light of the fact that it is difficult to see that a smartphone lostr provided the defendant with the right to dispose of the smartphone containing his personal information, etc., the court below acquitted the defendant of the facts charged on the ground that the defendant embezzled the smartphone, which is an object of possession, as stated in the facts charged, on the ground that there is no evidence that the smartphone is an object of possession. The court below erred in the misapprehension of facts, which affected the conclusion of the judgment.

2. Determination

A. Around 20:00 on February 17, 2013, the Defendant embezzled one of the instant facts charged by presenting to D prior to the flight of the subway No. 3 in Jung-gu Busan Metropolitan City, Jung-gu, Busan Metropolitan City, in order to obtain the victim’s name in return, without following necessary procedures, such as returning the said smartphone to the victim. On February 19, 2013, the Defendant, without undergoing necessary procedures, attempted to sell it to D prior to the flight of the subway No. 3 of the Busan Metropolitan City, Jung-gu, Busan Metropolitan City.

B. The lower court found the Defendant not guilty of the facts charged on the ground that it is insufficient to recognize that the aforementioned smartphone was lost solely on the witness E’s legal statement, and there is no other evidence to acknowledge it, in light of the fact that the Defendant acquired smartphones and then contacted the owner, the owner purchased a new mobile phone, and the Defendant wants to identify and process the above smartphones, but it was argued that D did not lose it.

C. The crime of embezzlement of stolen property by possession under Article 360(1) of the Criminal Act is established when the possession of stolen property, drifted matter, or any other article that has lost possession of another person is embezzled, and a thing that has deserted another person’s possession refers to an article that deviates from one’s possession without the original possessor’s intent (see Supreme Court Decision 2010Do4197, Mar. 10, 201).