The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for up to six months.

1. Summary of grounds for appeal;

A. The Defendant did not agree to return the principal of the investment that was received from the victimized party (hereinafter “the instant amount of damage”).

At the time of receiving the amount of damage of this case from the injured party, the entertainment room construction had been considerably advanced, and there was sufficient capability to pay the injured party the profit.

B. The sentence of the lower court’s improper sentencing (eight months of imprisonment) is too unreasonable.

2. Determination

A. In full view of the following circumstances acknowledged by the lower court and the evidence duly admitted and investigated by the trial court as to the assertion of mistake of facts, the Defendant could sufficiently be recognized that the Defendant acquired the amount of damage of this case from the injured party.

① In order to operate the entertainment room business, the Defendant was well aware that there was no property as a bad credit holder at the time when receiving the instant amount of damage from the injured party was invested, and that there was no experience in directly operating the entertainment room, and rather, it is not easy for the Defendant to pay profits from the entertainment room due to the bad credit experience after making investments in the entertainment room business once.

② The Defendant asserts that the instant amount of damage was “investment funds” and thus, the Defendant did not have any obligation to return it to the victim.

However, the victim made a consistent statement from the investigative agency to the effect that the Defendant promised to return the principal of investment, and the written contract for the same business prepared by the Defendant and the victim stated that “the Defendant is liable for and refund of the entire principal of investment if the victim wishes to do so” (the Defendant also recognized that the Defendant was liable to return the principal of investment to the victim at the trial date of the trial). ③ The Defendant asserted that the Defendant used the instant amount of damage to the Defendant in the operation of the amusement room, such as the purchase of the game machine and the entertainment

However, the Defendant used the amount of KRW 5 million out of the amount of damage of this case to repay personal debts.

On the other hand.