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The prosecutor's appeal is dismissed.
Reasons
1. According to the summary of the grounds for appeal (the factual error) by the prosecutor, the court below acquitted the defendant of the facts charged in this case, although the defendant could fully recognize the fact that he had taken money by deceiving the victim as shown in the facts charged. The court below erred by misapprehending the facts and adversely affecting the conclusion of the judgment.
2. In the judgment criminal procedure, the evidence that there is a criminal fact must be presented by the prosecutor, and even if the indictment of the defendant is unreasonable and false, it cannot be disadvantageous to the defendant, and the proof of criminal fact should have a judge have a high probability to recognize it so that there is no reasonable doubt, and if there is no evidence to form a conviction to such a degree, there is a doubt of guilt against the defendant even if there is no evidence to establish it.
Even if there is no choice but to judge the interests of the defendant.
(see, e.g., Supreme Court Decision 2007Do163, Nov. 30, 2007). Furthermore, deception as a requirement for fraud refers to any affirmative or passive act that has a duty of trust and good faith to each other in a widely accepted transactional relationship. It does not necessarily mean an essential part of a juristic act. It is sufficient to say that it is a basic fact of judgment for an actor to make a disposition of property desired by an actor by omitting the other party into mistake.
In addition, whether a certain act constitutes a deception that causes mistake of another person should be determined generally and objectively in consideration of the situation of the transaction, the other party's knowledge, experience, occupation, and other specific circumstances at the time of the act.
(see, e.g., Supreme Court Decision 2009Do7459, Oct. 15, 2009). Examining the reasoning of the judgment of the court below on the grounds of the aforementioned legal principle in light of relevant evidence and records, the court below is erroneous in its holding.