The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal (misunderstanding of facts) (hereinafter “the instant contract”) concluded a contract for acquisition of management rights and stocks with the content that Defendant A will acquire 2 million stock shares of the victim I Co., Ltd. (hereinafter “victim”) and 16.5 billion won for acquisition of management rights (hereinafter “the instant contract”). Defendant B borrowed 1 billion won to L to resolve the expenses incurred in the process of performing the instant contract, and repaid the said debt with the cost of capital increase for the damaged company. Defendant A and transferred 1 billion won out of the said cost of capital increase after the Defendant was gathered in advance with Defendant B, to the account designated by Defendant B. As such, the Defendants constitute a joint principal offender for the instant crime.

However, the lower court erred by misapprehending the facts charged, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. In full view of the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court’s judgment as to Defendant A, the lower court determined that the evidence submitted by the prosecutor alone is insufficient to acknowledge the fact that the Defendant conspireds with B that the damaged company’s funds were embezzled on duty, and that there is no other evidence to acknowledge it otherwise.

① In light of the process of concluding the instant contract and the process of executing the contract, etc., the Defendant took into account the financial power of the person who will take over the shares and management rights of the victimized company, and if he was aware that B was a person who was not financially capable of taking over the shares and management rights of the victimized company, the Defendant would have not entered into the instant contract with B, and L would have lent KRW 1 billion from the court of original instance to B and at the time of repayment.