The prosecutor's appeal is dismissed.

1. The gist of the grounds of appeal is as follows: (a) the issue of this case is whether the defendant deceivings the victim and acquires pecuniary benefits by deceiving the victim without intent or ability to sell the mobile phone which he opened to the victim's identity theft report; (b) the victim's statement is consistent; (c) there is sufficient objective evidence that conforms to the victim's statement; (d) the victim did not have any reason to open a new mobile phone; and (e) the circumstances of the defendant unrelated to the facts charged are merely the circumstances of the defendant unrelated to the facts charged in this case, the court below acquitted the defendant of the facts charged in this case.

2. Determination

A. (Related legal principles) The criminal intent of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the defendant's financial history, environment, contents of the crime, and the process of transaction before and after the crime, unless the defendant is led to confession. Since dolusence as a subjective element of the constituent element of the crime is established, it refers to the case where the possibility of occurrence of the crime is expressed as uncertain and it is acceptable. In order to have dolus negligence, it means not only the case where there is awareness of the possibility of occurrence of the crime, but also there is an internal intent to allow the risk of occurrence of the crime. Whether the actor permitted the possibility of occurrence of the crime is not dependent on the statement of the offender, but also on the basis of the specific circumstances such as the external form of the act and the situation of the act, it is necessary to confirm the psychological state from the standpoint of the offender.

Supreme Court Decision 209.26.