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The prosecutor's appeal is dismissed.
Reasons
1. On July 2014, the summary of the facts charged is that “The Defendant newly constructed a three-story building located in the C cafeteria, a lodging house in the front of the C cafeteria and the D dong-si (hereinafter “instant building”). Since the instant building was owned for five years, he/she would receive money from the owner regardless of whether he/she would receive money from the owner, regardless of whether he/she would receive money from the owner.”
However, on March 20, 2014, the Defendant entered into a contract with E to build the instant building by June 30, 2014. Of the total construction cost of KRW 220 million, the KRW 130 million out of the total construction cost of the said building would be leased to cover the deposit money. After the completion of the construction, the Defendant received KRW 50 million from E in accordance with the contract, and performed the construction after receiving the commencement fee of KRW 50 million from E, and even if the construction was not completed by August 30, 2014 as of June 30, 2014, the Defendant would waive the construction by returning KRW 50 million from the commencement fee of the construction.
“ Inasmuch as the content was written to E, the construction cost of KRW 50 million, out of the construction cost of KRW 90,000,000, was already paid, and there was no ability to procure construction cost of KRW 130,000,000 as well as to obtain KRW 30,000,000,000. Therefore, even if the victim received money from the victim, there was no ability to repay the victim with the money.
Nevertheless, the Defendant received KRW 3 million from the victim around July 20, 2014, from around 2014, and thereafter, from around May 6, 2015, the Defendant received a total of KRW 48,797,040 from around 21 times in the same manner as the list of crimes in the attached Form, or acquired property profits equivalent to that amount as litigation costs.
2. The lower court’s judgment shall be determined as at the time of borrowing in the case of fraud by defraudation of funds, and as to the part 1 through 15 per annum of the annexed list of crimes.