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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal is that the lower court acquitted the Defendant of the unilateral testimony of the witness J of the first instance court, which is inconsistent with the victim’s statement, without conducting any additional examination as to the progress rate of construction works at the time when the owner of the instant construction works was changed from D to E, and thereby, acquitted the Defendant. In so determining, the lower court erred by misapprehending the facts, thereby adversely affecting the conclusion
2. Determination
A. A. Around June 2016, the Defendant: (a) was a person who substantially operates B; (b) entered into a construction contract with D as to new construction works of neighborhood living facilities on the land outside Heung-gu Seoul Special Metropolitan City and one parcel; and (c) thereafter, D transferred the status of the owner of the said real estate and the building to E on October 2016, the Defendant entered into the said construction contract with E on November 2016.
However, the Defendant did not have the ability to perform the above construction work due to the lack of comprehensive construction license. Therefore, the Defendant was willing to conclude the construction contract with the victim limited partnership company F and G Co., Ltd. (hereinafter “victims”) and to have the victims progress the construction work.
On December 21, 2016, December 29, 2016, December 29, 2016, and February 10, 2017, the Defendant, throughout three times, forged the “standard contract for private construction works” in the name of E and entered into a construction contract as if the contract was duly formed with the Plaintiff’s limited partnershipF’s I executive director.
However, the fact is that the defendant did not have the right of representation for the construction contract from the owner E, and E did not have any obligation to pay the construction price to the victims, and the defendant did not have the ability to pay the construction price properly even if the victims progress work.
As such, the Defendant deceivings the victims and caused them to pay 84,3920,000 won for the construction cost.