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The prosecutor's appeal is dismissed.
Reasons
1. Although the defendant was unable to repay the money of this case from the victim at the time of borrowing the money, the court below acquitted the defendant of the facts charged. The judgment of the court below is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.
2. The summary of the facts charged states that, around October 13, 2008, the Defendant, at the office of G (hereinafter “G”) located in Gangnam-gu Seoul Metropolitan Government F Defendant’s management (hereinafter “G”), the Victim E, “If the Defendant has the right to vicariously sell the I building 1,566 units newly constructed in Young-gu, Yongsan-gu, U.S. H., and the money is urgently needed, if the Defendant borrowed KRW 100 million, the Defendant would pay the principal amount of KRW 100 million up to November 28, 2008, and interest KRW 100 million up to December 30, 2008, and would have the right to vicariously sell the building.”
However, in fact, even if the Defendant had a debt of 60 million won or more to the branch of J, and borrowed money from the victim, such as the Defendant’s failure to pay the company employees’ benefits normally, the Defendant did not have the intent or ability to pay it to the victim, and there was no intention or ability to grant the right to sell it to the victim
Accordingly, the defendant received KRW 100 million from the victim and acquired it by fraud.
3. The lower court’s judgment: (a) on December 5, 2007, G entered into a sales agency contract with the Plaintiff for the sales commission of KRW 3.666 million with regard to the apartment units 1,556 units in Yongsan-gu, Yongsan-gu; (b) around that time from February 12, 2008, G sold the above apartment units with 857 units (5.1%) among 1,556 units as of February 12, 2008 (5.1%) but around that time, the distance between the above apartment units was shorter due to the design problems, resulting in considerable disruptions in sales affairs by several buyers due to private labor, etc.; and (c) the sales contract was cancelled by several buyers.