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The prosecutor's appeal is dismissed.
Reasons
1. It is recognized that the defendant arbitrarily disposed of the property of the same kind and embezzled it in light of the consistent statement to the victim's investigative agency.
Nevertheless, the court below rejected the credibility of the victim's statement in the investigative agency only with regard to the reversal of the victim's statement in court, and sentenced the defendant not guilty of the facts charged in this case without conducting additional hearings as to the background leading up to the reversal of the statement, or examination as to F, G, and H's authenticity of the victim's statement. In addition, the court below erred by misapprehending the legal principles due to incomplete deliberation.
2. Determination
A. The summary of the facts charged in this case was around August 1, 2008, the Defendant invested KRW 120 million with the victim D in the “C” restaurant located in Gwanak-gu in Seoul Special Metropolitan City, and the Defendant entered into a contract with the victim to pay KRW 30% of the profits from the operation of the said restaurant in consideration of the investment. The Defendant was transferred from the victim KRW 40 million on August 1, 2008, KRW 30 million on August 21, 2008, KRW 40 million on August 21, 2008, KRW 309 million on August 28, 2008, KRW 90,000 on August 33, 2008, and KRW 10 million on May 7, 2009, and operated the said restaurant.
On November 2010, the Defendant transferred to the above E all rights related to the above restaurant, such as the right to operate the restaurant, deposit money, business facilities, etc., which are the property of the business of the above restaurant, under the pretext of the Defendant’s personal debt repayment to E, and embezzled it.
B. The lower court’s determination is difficult to view that evidence consistent with the facts charged in the instant case is a direct evidence in support of the instant facts charged, as the statement was omitted to the effect that the Defendant was aware of the disposal of C without D’s consent on November 201, 201 that the said statement was made by the victim, the police and the prosecutor’s office, and each statement of F, G, and H in the said F, G, and H, and that the statement was made by the Defendant at around November 2010.