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The prosecutor's appeal is dismissed.
Reasons
1. Comprehensively taking account of the evidence submitted by the prosecutor with the gist of the grounds for appeal, it can be recognized that the Defendant did not purchase a new harmony exchange with the same content as the purchase of new harmony if the victims were aware of the fact that the Defendant produced and sold recyclables. Thus, the Defendant’s deception can be fully recognized.
Nevertheless, the judgment of the court below which acquitted the Defendant of the facts charged of this case is erroneous.
2. Determination
A. The summary of the facts charged in the instant case is as follows: (a) the Defendant, while operating the “D fireworks” in Jeju City from January 1, 2014 to October 6, 2015, at the F Hospital funeral hall located in Jeju-si, collected at least 100 per month, and brought about to “D fireworks” the use of the funeral hall at the F Hospital funeral hall located in Jeju-si from January 1, 2014; and (b) removed the national flowers, support team, Lao, harmony, etc., and thereby, sold as if the Defendant knew of the fact that it would be recycled by taking advantage of it, and acquired the pecuniary benefits equivalent to KRW 44,896,00 in total over 72 times, as indicated in the list of crimes attached to the lower judgment.
B. The court below found the defendant not guilty of the facts charged in this case on the grounds that the evidence submitted by the prosecutor alone, on the grounds as stated in its reasoning, is insufficient to recognize that the defendant actively induceds the victims by commission, or that the defendant was unaware of the victims by omission because the defendant did not notify the fact that he had a legal obligation to notify the facts of manufacturing and selling recyclable products in light of the good faith principle, and there is no other evidence to acknowledge
(c)
1) The deception as a requirement for fraud of related legal principles refers to all affirmative or passive acts that have to be followed by each other in the transactional relationship with property, and among which they are passive acts.