The prosecutor's appeal is dismissed.

The summary of the grounds for appeal (fact-finding) is that the Defendant harvested ginseng without the consent of the victim and brought about the ginseng, and has already been subject to embezzlement, and it cannot be said that the Defendant had no intention of unlawful acquisition on the grounds of the circumstances before and after it.

Therefore, the lower court’s judgment that acquitted the Defendant even if the crime of embezzlement was recognized is erroneous.

The summary of the facts charged is the person who cultivates ginseng with eco-friendly farming law.

On March 2014, the Defendant: (a) in the Defendant’s ginseng dry field located in the following: (b) around 2014, the Defendant sold the ownership of ginseng in two ginseng dry field cultivated by the Defendant to the victim at the price of KRW 50 million; (c) in managing the ginseng dry field, the Defendant prepared an agreement between the victim and the Defendant on the content that the Defendant would jointly decide on the shipment and sale of ginseng cultivated while managing the ginseng dry field; and (d) received all the price of KRW 50 million.

In November 2017, the Defendant processed the ginseng dry field in the form of red ginseng in the market of ginseng owned by the victim, which was planted in the said dry field at will, on the ground that the Defendant did not cooperate with the “environmental agricultural product certification” for ginseng produced in the said dry field, in two Dongs of the ginseng dry field, which was managed for the victim under the above agreement, on the ground that the victim did not cooperate with the “environmental agricultural product certification.”

Accordingly, the Defendant embezzled the unclaimed ginseng at the market price, which was kept in custody for the victim.

In full view of the following facts and circumstances recognized through lawful examination of evidence, the lower court’s determination is difficult to recognize the intent of unlawful acquisition, considering that the Defendant: (a) as the victim was unable to grow ginseng any longer due to his/her failure to perform his/her duty under the agreement with the Defendant; (b) he/she harvested and processed all of the ginseng without any choice; and (c) stored the ginseng owned by the victim in freezing;

The evidence submitted by the prosecutor alone is that the defendant has the intention of illegal acquisition.