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The appeal is dismissed.
Reasons
The grounds of appeal are examined.
1. As to the part of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), the amount of profit as prescribed by Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the sum of the amount of profit or the amount of profit where a single crime is constituted, and as such, the amount of profit should, in principle, be included in the facts charged as to the amount of loss by victim and each victim in order to rate it as a crime of violation
(See Supreme Court Decision 2010Do13801 Decided February 24, 2011). Moreover, the selection of evidence and the probative value of evidence, which are based on the premise of fact-finding, belong to the free judgment of the fact-finding court.
(Article 308 of the Criminal Procedure Act). On the grounds indicated in its reasoning, the lower court affirmed the first instance court’s determination that this part of the facts charged did not specify the amount of damage by the victim and the victim and thus, constitutes null and void due to violation of the statutory provisions.
The ground of appeal disputing the fact-finding of the lower court is merely an error of the lower court’s determination on the evidence selection and probative value, which belongs to the free judgment of the fact-finding court.
In addition, examining the reasoning of the judgment below in light of the records, the above judgment of the court below seems to be based on the legal principles as seen earlier, and contrary to what is alleged in the grounds of appeal, there is no error of misapprehending the legal principles as to the specification of the facts charged in the crime
2. As to the violation of the Framework Act on the Construction Industry and the part of occupational embezzlement, the conviction in a criminal trial ought to be based on evidence with probative value, which may lead a judge to have a conviction that the facts charged are true beyond a reasonable doubt, and if there is no such proof, even if there is no suspicion of guilt against the defendant.