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The prosecutor's appeal is dismissed.
Reasons
1. According to the evidence submitted by the Prosecutor’s Office, the Defendant, in accordance with the terms and conditions of the contract concluded with G, resolved the complicated relationship of rights with respect to the game of this case, and did not have the intent or ability to transfer the game of this case to G. However, it is sufficiently recognized that the Defendant, even though he did not have the intent or ability to transfer the game of this case, could resolve all the rights
Nevertheless, the lower court erred by misunderstanding the facts charged and adversely affecting the conclusion of the judgment.
2. Determination
A. On March 4, 2006, the Defendant entered into a sub-lease contract with C on the first floor (141 square meters, hereinafter “instant building”) of the building E-U., Nam-gu, Incheon (hereinafter “instant building”) leased by C from D on March 4, 2006, and operated an adult amusement room under the name of “F”.
On the other hand, the lease contract between D and C was concluded on March 10, 1997 and it was valid after implied renewal after March 9, 1999, and C sub-leaseed to the defendant with the consent of the lessor D around April 2006. Thus, the legitimate lessee of the above real estate was C, and the defendant merely was merely the sub-lessee, and the above real estate could not be sub-leased to other persons at his own discretion.
Nevertheless, the Defendant prepared a written contract with the purport that “The above adult entertainment room business is transferred to the victim by August 15, 2006 in a state where the said adult entertainment room is able to use the said real estate for the purpose of operating the game” on July 31, 2006, when the Defendant was trying to reduce the rent to sub-lease C and move to Jeju-do. However, the Defendant prepared a written contract with the purport that “The above adult entertainment room is transferred to the victim by August 15, 2006 in a state where the said real estate is able to be used and used for the purpose of operating the game, by resolving all problems.”