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The prosecutor's appeal is dismissed.
Reasons
1. According to the evidence presented in the court below's decision on December 24, 2009, the defendant was sufficiently convicted of this part of the facts charged as to the fact that the defendant received the above investment money by deceiving the victim even though he did not have the intent or ability to return the principal of the investment money because the operation of the management office already managed by the defendant was not smooth, at the time of receiving KRW 30 million from the victim E as investment money.
2. The burden of proof of criminal facts prosecuted in a criminal trial for judgment is to be borne by the prosecutor, and the conviction should be based on the evidence of probative value, which makes the judge sure that the facts charged are true to the extent that there is no reasonable doubt. Thus, if there is no such proof, the suspicion of guilt against the defendant even if there is no such proof.
Even if the defendant's interest is determined as the defendant's interest, not guilty should be sentenced.
(See Supreme Court Decision 91Do235 delivered on March 22, 191). According to the evidence duly adopted and examined by the court below, the defendant was liable for a loan of approximately KRW 10 million to financial institutions as of December 24, 2009, and the defendant's failure to pay the amount of KRW 30 million to the management office of the fifth floor in operation since January 201, immediately after the defendant was paid the amount of KRW 30 million from the victim, the defendant's payment of dividends corresponding to the above investment amount was only KRW 1 million, and in light of the above facts, it is probable that the defendant had already been unable to operate the management office at the time of receiving the above investment amount, and even if receiving the investment amount from the victim, it is not probable that the defendant was paid the investment amount under the pretext of expanding the management office of the victim's investment.
(b).