The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. The lower court acquitted the Defendant on the grounds that it is difficult to believe the victim’s statement.

However, the victim consistently stated from the investigative agency to the court below that the victim gave 10 million won to the victim under the name of the commencement fee for the removal of Green Cross factory. In the absence of possibility of purchase through the defendant, the victim's statement has credibility because there is no reason to give 10 million won to the defendant without any security.

B. Unlike the Defendant’s assertion, even if the Defendant merely borrowed KRW 10 million from the victim, a crime of fraud is established since the Defendant did not have the ability to repay the above loan.

2. Determination:

A. In order to establish the key issue of fraud, the Defendant should be recognized as having committed deception, which belongs to the victim.

Since such deception constitutes an important part of the facts charged directly related to the defendant's exercise of the right of defense, the prosecutor must specify the deception of the defendant, and the court cannot recognize a deception different from the written indictment without changing the indictment.

Ultimately, even if the defendant simply borrowed KRW 10 million from the victim, it is not acceptable to accept the conjunctive argument in itself among the grounds for appeal by the prosecutor that the crime of fraud is established due to lack of ability to repay, and the defendant examines only the primary argument among the grounds for appeal by the prosecutor.

B. However, there is a statement made by the victim in an investigative agency and a court that conforms to the facts charged in the instant case, but the following circumstances acknowledged by the record, ① the victim’s above statement is entirely inconsistent with the circumstances and contents of the defendant’s delivery of KRW 10 million to the defendant. ② On the other hand, the defendant gave KRW 25 million to D in relation to the removal of the Green Cross Factory from the investigative agency to the trial.