The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. As to the attempted fraud (1) of mistake of facts, the Defendant paid to the construction business operator an amount higher than the actual construction cost in order to reduce capital gains tax to be paid at the time of sale by the Gelel located in the Nowon-gu Seoul Special Metropolitan City Fel (hereinafter “the instant el”) later after consultation with the victim’s agent D, and then used the money returned from the said construction business operator as the construction cost again for the said construction work. Therefore, there is no deception by the victim.

(2) As to embezzlement, the Defendant’s wife received value-added tax of 10%, which is included in the construction cost paid by the construction business operator of the refund of value-added tax, upon request from D who represented the victim in the construction and operation of the instant franchise.

d. Around April 2010, the Defendant borrowed the money and settled the refund money after deducting the money that the Defendant would receive at the time of settling the construction cost from the money that the Defendant would have the intent of embezzlement.

or the victim's losses, and there was a domestic embezzlement.

Even if the refund of value-added tax is the same as the business property of the defendant and the victim, the amount of embezzlement is only 33.5 million won, excluding the defendant's shares.

B. (1) The sentence of the lower court (ten months of imprisonment, two years of suspended execution, and forty hours of community service order) is too unreasonable.

(2) The Prosecutor’s sentence is too uneasible and unreasonable.

2. Determination

A. The summary of the facts charged in the instant case (1) The Defendant is a person who is engaged in the business of trading and brokerage of telecom.

On March 29, 2008, the Defendant: (a) requested by the victim E to accept and operate the telecom; and (b) introduced the instant telecom to the victim; and (c) around March 29, 2008, the Defendant entered into a contract with the victim to take over the instant telecom with the total amount of KRW 3.15 billion, such as succeeding to the obligation of KRW 2.6 billion, for which the said telecom owner H obtained a loan from HK Mutual Savings Bank as security of the above telecom.