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The prosecutor's appeal is dismissed.
Reasons
1. According to the evidence submitted by the prosecutor, such as the F’s statement in the investigation agency and the court below’s decision and the statement in the import agency agreement, the facts charged of the instant case that the Defendant, even though the Defendant did not have any intent or ability to sell the instant machine, by deceiving the victim and receiving KRW 35 million from the damaged party, shall be fully recognized.
Therefore, the judgment of the court below which acquitted the Defendant of the facts charged of this case is erroneous.
2. Determination
A. The lower court determined on February 3, 2013, based on the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, namely, ① the Defendant imported and sold the instant machinery in the name of the Defendant, etc. to F, and received machinery payments from F and received from Japan; ② the Defendant, on March 23, 2013, decided to sell the instant machinery at KRW 35 million to the victim on March 23, 2013; ③ the Defendant received the instant machinery payments from the victim on the 25th of the same month when the instant machinery was brought into the Republic of Korea; ③ the Defendant failed to follow customs procedures for the instant machinery due to financial shortage; ② the Defendant failed to request the importer to change the name of the instant machinery on April 3, 2013, and thus, the Defendant was authorized to dispose of the instant machinery at the time of the change to the importer’s name on the 4th of the same month.
(2) The plaintiff had no intention or ability to sell the machinery of this case from the beginning.
The charges of this case were acquitted on the ground that there is no evidence to determine the person.
B. The import contract for the machinery of this case concluded in Japan for the first time after the judgment of the court below for the above fact finding was concluded in the name of the defendant, and the price in the transactional relationship.