The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

However, the above punishment shall be imposed for a period of two years from the date this judgment became final.

1. Grounds for appeal (the factual error and the unreasonable sentencing)

A. On July 28, 2010, a misunderstanding of facts 1) around July 2010, the Defendant: (a) concluded a contract to sell the right to operate the restaurant to the victim on July 28, 2010, when the Defendant secured to a certain extent from the head of the E site site through the directors Q, the removal company of the right to operate the restaurant, to be installed in the construction site of the main apartment complex newly constructed by Jungdong-gu, Seoul (hereinafter “U”) around July 28, 2010; (b) however, at that time, it was unclear at that time whether the construction of the apartment restaurant could be installed as a brin restaurant because it was not completed; and (c) the Defendant was paid the down payment and intermediate payment of KRW 150,000,000,000 from the victim, and provided the Defendant’s 20,500,000 won-5,000 won of the market price owned by the Defendant for security.

At the time, even if the sum of the actual debt amount of the first and second priority mortgage was set up on the above apartment, KRW 294 million and the amount of KRW 20,000,000,000 for the lessee of the above apartment, the priority obligation was limited to KRW 314,000,000. The Defendant’s monthly income was 10,000,000 won, and thus, it was sufficiently returned even if the victim received KRW 150,000 from the victim.

After the end of December 2010, the underground construction was completed, but at the time of the late-2010, the partner no place to install the brine in the place where the brine cafeteria was installed, which the Defendant anticipated in advance, no place to install the brine cafeteria has been lost, so there is no fraud of money by deceiving the victim.

B. On November 22, 2010, the Defendant heard from Q Q to the effect that the Defendant may start the brin restaurant business at the end of the year after completing the brine construction work on December 2, 2010. On November 22, 2010, the Defendant received advance payment of KRW 30 million from the victim, but was permitted to use the land from the Jung-gu Office free of charge in order to install the brine restaurant outside the site.