The prosecutor's appeal is dismissed.

1. The gist of the prosecutor's appeal is that the defendant, among the profits from the sales of the musical group of the items of "D" (hereinafter "public performance of this case") to the victims, committed an act of deceiving the victims about the order and method of return of the investment amount at the time when each of the victims was delivered with an exclusive and preferential investment return, as long as the defendant promised to return the investment amount to the victims, the court below erred by misapprehending the legal principles as to the deception of fraud and thereby affecting the conclusion of the judgment.

2. The recognition of facts constituting an offense in a criminal trial ought to be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof fails to fully reach the extent that the defendant’s assertion or defense is inconsistent or unreasonable, it should be determined in the interests of the defendant even if there is suspicion of guilt, such as where the defendant’s assertion or defense is inconsistent or unreasonable.

(see, e.g., Supreme Court Decision 2010Do14487, Apr. 28, 2011). In full view of the evidence duly adopted and examined by the lower court as well as the statements in the court of first instance at W, X, andY, each of the following circumstances are recognized by the lower court on the grounds of the judgment of innocence.

Comprehensively taking account of these circumstances, the victims determined the investment in the performance of this case by comprehensively taking into account the planning ability of the performers of the performance of this case, the time and place of the performance, and other factors, based on the investment experience in the performance.

Therefore, the defendant's situation that the victims could not recover all of the investments due to performance earnings that fall short of the investment funds, unlike the presumption of the defendant and the victims.