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The prosecutor's appeal is dismissed.
Reasons
1. Although the gist of the grounds for appeal is sufficient to acknowledge the guilty of the facts charged according to the evidence of the court below, the court of the court below acquitted the defendant, witness F, and I based on their respective statements. In so determining, the court below erred by misapprehending the legal principles.
2. Determination
A. A. Around December 6, 2007, the summary of the facts charged, the Defendant decided to take over the earth and stone gathering project from C on the racing-si, in KRW 2.1 billion, and paid KRW 500 million as the contract deposit and intermediate payment. However, the Defendant had difficulty in attracting business funds to take over the above project due to the situation where the earth and stone collected at the above site did not have any adequate strength for carrying out the project.
1. Around April 2008, the fraud Defendant stated that “Around March 2008, he/she almost acquired permission to collect earth and stones from C from a stock company, and given a subcontract for soil and sand transport works generated at the site, which would change KRW 130 million as a performance bond.”
However, the defendant did not fully take over the above business due to the shortage of funds, and it did not have secured customers to purchase earth and sand, which is the premise of soil and sand transportation. On January 8, 2008, the defendant entered into a soil and sand transportation contract with F and has already received approximately KRW 100 million performance guarantee, and the defendant was merely entered into a subcontract for transportation work to raise funds, and even if he received money from E as the performance guarantee, he did not have any intention or ability to give a subcontract for transportation work.
The defendant explain the above contents to the victim E and explain it to the victim G, and under the name of investment for the payment of the above performance guarantee, the defendant shall pay 70 million won on April 1, 2008, and the same year.
4.4.5 million won has been transferred to the National Bank Account in the name of Dong Mine Construction Co., Ltd., and at that time, it is under the name of performance guarantee.