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The judgment below
All the remainder of innocences, excluding the acquittal portion as to the fraud of the deposit money.
Reasons
1. The summary of the grounds of appeal by the prosecutor in question ① As to the “investment-related fraud”, the Defendant remitted the amount received from the victims to the Spanish Communications Company’s investment funds.
Even if the Defendant clearly stated that the victims were made a false statement about the time of occurrence of investment benefits, the Defendant received an investment even if other investors did not receive an investment of KRW 1 billion, the victims used some of the money received from the victims for other purposes, the victims D continued to make an investment even though they requested the waiver of investment, and even if shares were listed, the Defendant was aware of the fact of deceiving the victims at the time of receiving the instant investment benefits from the victims, and found the victims not guilty of this part of the charges by misapprehending the legal principles.
② As to the “payment fraud”, the lower court acquitted the Defendant of this part of the facts charged by misapprehending the legal doctrine, even though it appears that the Defendant did not have any intent or ability to pay the payment after the receipt of the payment, on the grounds that, around April 2008, the Defendant knew that it is impossible to recover the investment money within a short time due to uncertainty as to whether the listing of the Spanish telecommunications company was listed or not.
2. Determination
A. (1) Prior to the prosecutor’s judgment on the assertion of mistake or misapprehension of legal principles regarding “investment-related fraud” in this part of the grounds for appeal, the prosecutor examined ex officio prior to the prosecutor’s judgment on the grounds for appeal, and the prosecutor finally applied for changes to the contents of the facts charged as indicated in (2) below. The prosecutor changed only the facts charged against D in the application for changes to the indictment filed on January 15, 2012, and then on May 31, 2012.