beta
Text
The defendant's appeal is dismissed.
Reasons
1. The scope of the judgment of this court is determined as not guilty with respect to the fraud, which is the primary charge, and the court below found the defendant guilty with respect to the embezzlement, which is the primary charge. The defendant filed an appeal only for the guilty part of the judgment of the court below, and the prosecutor did not appeal.
In such a case, the part of acquittal in the reasoning is also judged to the appellate court along with the part of conviction in accordance with the principle of non-guilty appeal, but the part of acquittal in the reasoning is already excluded from the object of attack and defense between the parties, and thus the court cannot re-determine this part
(see, e.g., Supreme Court Decisions 2004Do5014, Oct. 28, 2004; 2009Do12934, Jan. 14, 2010). Therefore, with respect to the part of innocence on the grounds above, the conclusion of the lower judgment is followed, and a separate judgment is not rendered in the trial.
2. Summary of grounds for appeal;
A. At the time of the instant case, the Defendant: (a) heard that the victim’s consent was obtained from C; and (b) set up a collateral on the Seo-gu Daejeon E Apartment F (hereinafter “instant apartment”); and (c) obtained a loan from the victim, Seo-gu, Daejeon.
Therefore, it cannot be viewed that the defendant had the criminal intent of embezzlement.
B. The sentence imposed by the lower court (eight months of imprisonment) is too unreasonable.
3. Judgment on the defendant's assertion of mistake of facts
A. The Defendant alleged the same purport in the lower court’s judgment. According to the police and the statement in the court’s police, the lower court, the Defendant and C obtained a loan by establishing a collateral on the instant apartment that had been destroyed by the victim, and during that process, the victim, who became aware of the Defendant’s promoting the loan, provided that he would not grant a loan to the Defendant and C. Accordingly, the victim continued to refuse the loan secured by the instant apartment.