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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds of appeal is that the Defendant used most of the instant damages amounting to KRW 24 million, and the Defendant’s wife P entered the victim’s wife as the guarantor due to deception by the Defendant and A, giving the victim’s wife as the guarantor during the process of raising KRW 30 million through I, and thus, the Defendant’s functional control over the total fraud crime is recognized.
Therefore, even though the defendant could be fully convicted of the facts charged of this case that the defendant conspireds with A to deception the victim and acquired the pecuniary advantage equivalent to KRW 30 million, the court below sentenced the defendant not guilty by mistake of facts.
2. Determination
A. The Defendant and A of the facts charged of the instant case conspired to acquire money under the pretext of construction performance guarantee, etc. by deceiving that they will give a subcontract for large-scale remodeling construction works to the interior business operators.
A은 2012. 7. 11.경부터 피해자 L에게 수시로 연락하여 하이트맥주 매장 인테리어 공사를 주겠다고 하여 피해자의 환심을 산 뒤, 피해자와 수시로 연락을 하던 중 2012. 11. 중순경 피해자에게 ‘M 대표 피고인이 호텔 공사를 땄는데, 3,000만 원만 주면 공사의 반을 주겠다고 한다’고 거짓말을 하였다.
At around 19:00 on December 18, 2012, the Defendant and A met the victim at the cafeteria restaurant near the New department store located in Seodaemun-gu Seoul, Seocheon-gu, Seoul. However, the Defendant concluded that “The Defendant ordered the construction of the whole construction of the building, such as the extension of the 12 foot pentle up to 15th floor, and the total remodeling construction of the building, is a 3 billion foot construction, and the construction of the 1.5 billion won in the face of 30 million Won, to subcontract the construction of the 1.5 billion won in the face of 30 million won,” and also A was aware of the victim by combining it.
However, there was no scheduled plan for the extension work from 13th to 15th, and there was no fact that the defendant had the above hotel construction work.
A continuing to continue to exist on December 26, 2012, Seongbuk-gu Seoul H.