The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two months.

1. Summary of grounds for appeal;

A. As to the embezzlement of mistake of facts, the Defendant was merely unable to memory of the victim even though he returned the gold sheet to the victim at the time.

B. The lower court’s sentence of unreasonable sentencing (four months of imprisonment) is too unreasonable.

2. According to the records of ex officio determination, the defendant was sentenced to four years of imprisonment for rape, etc. by the Gwangju High Court on February 13, 2020, and the above judgment became final and conclusive on April 24, 2020.

The Defendant’s crime of this case is in the relation of rape, etc. for which the judgment became final and conclusive, and the latter part of Article 37 of the Criminal Act, and ought to consider equity in the case where the judgment was rendered simultaneously in accordance with the main sentence of

Therefore, the judgment of the court below cannot be maintained as it is.

However, despite the above reasons for ex officio destruction, the defendant's assertion of mistake of facts is still subject to the judgment of the court.

3. Circumstances acknowledged by the lower court and the evidence duly adopted and investigated by the trial court on the assertion of mistake of facts, namely, ① the victim stated that he saw the victim from the investigative agency to the court below to consistently and saw the victim that he did not receive a refund of the horse from the Defendant; ② the victim made a concrete statement on the situation after drinking the Defendant and the alcohol; ② the victim does not seem to be unsatisfing the fact that he got a refund of the horse from the Defendant under the influence of alcohol; ③ On the other hand, the Defendant sent a message to the victim’s message askeding whether he would bring the gold scrap on the day of the instant case, and then sent it again in the police investigation, but the victim was placed in the drinking dog. From the prosecutor’s office to the trial, the victim was within his own car.