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All appeals filed by the defendant and prosecutor are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1) misunderstanding of facts (the part of KRW 10 million remitted to the account on April 27, 2012) is true that the Defendant received a remittance of KRW 10 million from the victim to the bank account on or around April 27, 2012. However, the Defendant received the said money from the victim by stating that “the Defendant would pay the said money through a partner who engages in credit business” and paid the said money to the victim KRW 14.5 million thereafter, and there was no fact that the Defendant by deceiving the victim under the pretext of investment in the business related to tax-free oil, such as written in the facts charged, and by deceiving the victim under the pretext of investment in the business related to tax-free oil. 2) The sentence of unfair sentencing (one million imprisonment) by the lower court is too unreasonable.
B. The Prosecutor’s sentence of the lower court is too unhued and unreasonable.
2. Determination
A. In light of the content of the judgment of the court of first instance on the assertion of mistake of facts and the evidence duly examined by the court of first instance, if there are special circumstances to deem that the first instance judgment on the credibility of the statement made by the witness of the court of first instance was clearly erroneous, or if the first instance court’s determination on the credibility of the statement made by the witness of the court of first instance and the additional examination of evidence by the time of the closing of argument in the appellate court are not acknowledged to be remarkably unfair, the appellate court should not reverse the first instance judgment solely on the ground that the first instance judgment on the credibility of the statement made by the witness of the court of first instance is different from the appellate court’s judgment (see, e.g., Supreme Court Decision 2006Do4994, Nov. 24, 2006). The court below found the credibility of the statement made by the victim D and found the defendant guilty of the crime of this case by acquiring KRW 50 million from the victim under the pretext of investment in tax-free business.
The victim was aware of the Defendant as the president of the gas station in the court of the court below, and invested in the business related to the tax-free oil from the Defendant.