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The prosecutor's appeal is dismissed.
Reasons
1. The lower court found the Defendant guilty of obstruction of the performance of official duties among the facts charged in the instant case, and acquitted the Defendant on the fraud.
Therefore, only the prosecutor appealed the part of innocence, and since the defendant and the prosecutor have not appealed the part of conviction, the scope of this court's judgment is limited to the part of innocence.
2. Comprehensively taking account of the summary of the grounds for appeal (the factual errors and misapprehension of the legal principle), the fact that the defendant, although there is no intention or ability to pay the price as stated in this part of the facts charged, he/she acquired the above amount by deceptioning the above price by placing an oral order.
Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.
3. The lower court found the Defendant not guilty of this part of the facts charged on the ground that the evidence submitted by the prosecutor alone was insufficient to recognize that the Defendant had no intention or ability to pay the drinking value.
The following circumstances revealed by the records of this case, i.e., the Defendant made a statement from the investigative agency to the effect that “it was possible to calculate the drinking value at the time of possession of cash and cards, but was unable to calculate the drinking value under the influence of alcohol”, ii) the Defendant had fixed income at the time, and the Defendant was paid KRW 2,947,829 to the account in the name of the Defendant on July 5, 2018, which is the day before the occurrence of the instant case. iii) there was no investigation as to whether the Defendant had a means of payment to pay the drinking value, such as cash or card, etc. at the time of the instant case. iv) The police officer sent to the scene at the time of the instant case was under the influence of alcohol at the court of the lower court, and recommended the Defendant to pay the drinking value at the time of the instant case, but the Defendant continued to stand A.