The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

Summary of Grounds for Appeal

A. Defendant 1) Fact-finding and misunderstanding of legal principles that the Defendant received money from the victim; however, in the process, the Defendant did not deceiving the victim; nor did the Defendant have attempted to commit a crime by deception. 2) The lower court’s sentence of unfair sentencing (three years of imprisonment) is too unreasonable.

B. Prosecutor 1) The judgment of the court below which did not recognize a part of the amount obtained by deceit, even though the defendant acquired a total of KRW 274,858,416 from the victim, such as the facts charged, is erroneous in misunderstanding of facts. 2) The sentence of unfair sentencing is too unfeasible and unfair.

2. We examine ex officio the grounds for appeal prior to the judgment ex officio.

As to the facts charged in this case, the lower court determined that “the Defendant, by deceiving the victim, obtained a total of KRW 274,858,416 from the victim as stated in the attached Table of Crimes” (hereinafter referred to as “crime List”) from August 1, 2019 to November 17, 2019,” and acquired a total of KRW 274,858,416 from the victim, such as the victim’s list of crimes indicated in the attached Table of Crimes” (hereinafter referred to as “crime List of Crimes”), was excluded from the amount acquired, based on the fact that there is insufficient evidence to recognize that the victim had delivered each of the above money to the Defendant, the lower court recognized only the amount acquired through deception as a total of KRW 183,738,312.

However, the delivery of property in fraud constitutes a requirement for the composition of crime, and part of the amount charged as above excluded from the amount of fraud is not recognized among the elements for the composition of crime in which the prosecutor instituted a prosecution, so if such judgment is made, the court shall render a judgment of innocence as to the part excluded from the amount of fraud.

Nevertheless, the court below, however, has modified 274,858,416 won, which was charged, to 183,738,312 won, and excluded from the amount acquired through deception, and 91,120.