The prosecutor's appeal is dismissed.

1. The Defendant is a person who runs a secondhand shop in the facts charged of this case.

On February 5, 2015, at around 20:00, the Plaintiff received 10,000 won check “F” (hereinafter referred to as “the instant check”) from the victim E (hereinafter referred to as “E”) who has engaged in the same business as a successful bidder in the ordinary auction.

However, this error caused E to be erroneous as a KRW 10 million check by mistake that he had a right of KRW 5 million. The Defendant, despite being aware of the amount received, did not follow necessary procedures, such as returning it to E, and he embezzled as he had the idea to have.

2. The lower court determined that there was no evidence to prove the facts charged in the instant case and sentenced the Defendant not guilty for the following reasons.

A. The premise of the facts charged in the instant case is that: (a) around February 5, 2015, E erroneously paid KRW 16.1 million of its own contribution among the successful bid price for auction that was the same day as the Defendant on the same day; (b) in the course of paying KRW 16.1 million of the KRW 5 million check in lieu of Chapter 1 of the KRW 5 million check.

B. According to the evidence duly adopted and examined by the court below, the following facts are recognized:

From November 2014 to February 2015, Defendant, E, and G (hereinafter collectively referred to as “Defendant, etc.”) participated in the auction procedure for corporeal movables (hereinafter referred to as “auction”) over about 14 occasions including the following auction, and sold the movable property awarded a successful bid and distributed profits.

Defendant

① On February 4, 2015, the two weeks’ bid price was awarded together with the amount of KRW 39,050,000 (Ean settlement amount of KRW 19,500,000), ② on February 5, 2015, the total amount of KRW 32,252,00 in Pakistan, Yangju, Gwangju, etc. (Ean settlement amount of KRW 16,100,000), ③ on February 11, 2015, the amount of KRW 31,80,000 (Ean settlement amount of KRW 10,660,000). The successful bid price is once paid by the Defendant first and thereafter settled the amount calculated at the ratio of the contribution from E, etc.