The prosecutor's appeal is dismissed.

In full view of the evidence attached to the facts charged in this case, the court below acquitted the defendant of the facts that the defendant borrowed KRW 100 million from the injured party without the intention or ability to repay the borrowed amount. The court below erred in the misapprehension of facts.

Furthermore, even if the defendant is deemed to have received KRW 100 million under the pretext of investment, not the borrowed money from the damaged person, as in the judgment of the court below, the defendant is guilty of fraud since he deceivings the victim to acquire the invested money.

Judgment

The grounds for appeal by the prosecutor ex officio are examined ex officio prior to the judgment.

The Prosecutor, while maintaining the facts charged in this case as the primary facts charged at the court below.

C. (1) As stated in paragraph (1), an application for amendment to a bill of amendment was filed, and this court permitted this and added the subject of the judgment.

In the following, the grounds for appeal against the primary facts charged by the prosecutor and the ancillary facts added in the trial of the party are examined in order.

In the relevant legal principles as to the assertion of mistake of facts as to the primary facts charged, the recognition of facts should be based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Therefore, in a case where the prosecutor’s proof does not sufficiently reach the extent to have the aforementioned conviction, even if there is a doubt of guilt, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal, it should be determined in the interests of the defendant (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 2011). In addition, the appellate court of one criminal case has the character as a follow-up trial and has the spirit of substantial direct deliberation as prescribed in the Criminal Procedure Act.