The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for four months.

However, the above punishment for a period of two years from the date this judgment became final and conclusive.

1. Summary of grounds for appeal;

A. Although the Defendant had no intention to commit a theft, the lower court found the Defendant guilty of the instant facts charged, the lower court erred by misapprehending the legal doctrine.

B. The sentencing of the lower court is too unreasonable.

2. Determination

A. In full view of the evidence duly admitted and examined by the lower court regarding the assertion of mistake of facts, the Defendant’s intentional theft of the victim’s smartphone as stated in the lower judgment can be fully recognized. Therefore, the above assertion by the Defendant is without merit.

B. Considering the fact that the defendant committed the instant crime again during the period of suspension of the execution of the same kind of crime even though he/she had been tried for the same kind of crime, strict punishment against the defendant is necessary.

However, considering the fact that the damaged goods from the crime of this case were returned to the victim, the victim does not want the punishment of the defendant, and the age, sex and environment of the defendant, motive, means and consequence of the crime, and the circumstances after the crime of this case, the court below's punishment against the defendant is too unreasonable. Thus, the above argument by the defendant is justified.

3. In conclusion, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the defendant's appeal is with merit, and the judgment below is ruled again as follows.

Criminal facts

The summary of the facts charged and the summary of the evidence recognized by the court is identical to the facts stated in the corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant Article 329 of the Criminal Act, the choice of punishment for the crime, and the choice of imprisonment;

1. Article 62 (1) of the Criminal Act on the suspended execution;