The prosecutor's appeal is dismissed.

An application filed by an applicant for compensation shall be dismissed.

1. Summary of grounds for appeal;

A. In light of the fact that the Defendant received an investment amount equivalent to KRW 25 million from the victim under the pretext that he would develop and sell the land indicated in the facts charged (hereinafter “the instant land”) and did not engage in any act necessary for developing the land (such as obtaining permission from the government agency and removing ruptures, etc.), the Defendant received the instant investment amount from the victim without intent and ability to develop and sell the instant land from the beginning.

Nevertheless, the court below found the victim not guilty of the facts in this part of the facts, on the grounds of the circumstances after the crime of fraud was committed after the victim permitted the sale of the land of this case, and without any specific judgment or explanation of the reasons for innocence, there is an error of

B. It is the opinion of the Supreme Court established that the crime of embezzlement is established if (1) a mistake of facts as to the ancillary charge (the point of embezzlement) violates the obligation to settle and uses a partner's money in the same business relationship.

(See Supreme Court Decision 2000Do3013 Decided November 10, 2000). In this case, the Defendant and the victim agreed to provide a victim with an investment necessary for land development and distribute profits accrued from the Defendant’s development of the land after selling the land (hereinafter “instant investment agreement”). As such, a partnership relationship was formed among them.

Since the defendant sold the land of this case according to the agreement with the victim, the defendant should return the investment money of this case out of the purchase price as part of the settlement of the business relationship, but did not return it, so the crime of embezzlement is established against the defendant.

I would like to say.

(2) At the time of the instant investment agreement, the Defendant is the victim.