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The prosecutor's appeal is dismissed.
Reasons
1. According to the evidence submitted by the prosecutor of the gist of the grounds for appeal, despite the fact that the defendant did not have the intention or ability to return the lease deposit at the expiration of the term of lease, he can be found to have obtained it from the victim and acquired it by fraud, the judgment below
2. Determination
A. On August 30, 2010, the summary of the facts charged, at the G Licensed Real Estate Agent Office located in Yongsan-gu, Yongsan-gu, Busan Metropolitan City, on the third floor of the instant housing, the Defendant concluded a lease contract with the said third floor, and concluded a false contract with the victim H (58 years old) to the effect that the market price of the instant housing is KRW 1 billion, and that the sum of the maximum debt amount of senior mortgage is KRW 68 billion or the deposit for lease is received, the Defendant would immediately repay part of the aforementioned collateral loan, and that there is no need to make any doubt about the return of the deposit for lease in the future.
After that, the Defendant delivered to D, one’s husband, the terms of the above lease agreement, which read “a lessee shall refer to the lessee’s deposit to the repayment of the lessee’s deposit for lease on the land and building occupied by the lessee,” under paragraph (1) of the above lease agreement.
However, in fact, the market price of the instant house was 7-80 million won, and at the time the Defendant and D were economically difficult to use the bonds, and the lease deposit received from the victim was thought to be used as expenses for the operation of private teaching institutes, not the repayment of the secured loan, and thus, there was no intention or ability to refund the lease deposit after the expiration of the lease period.
Nevertheless, the Defendant conspired in collusion with D, thereby deceiving the victim as such, received KRW 13 million in cash on the same day as the lease deposit, and KRW 60 million in check on October 12, 201, and received KRW 130 million in total on January 18, 201, including the transfer of KRW 57 million to the Agricultural Cooperative Account of D.
B. The lower court’s judgment is various.