The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

1. Summary of grounds for appeal;

A. Defendant 1’s assertion 1) misunderstanding of facts is erroneous in the misapprehension of facts in the judgment of the court below which found Defendant guilty of the facts charged in the absence of intention of deception, since the Defendant, who acquired a club and intended to repay the loan with operating profit, but failed to make any profit different from the expected profit. 2) The punishment (two years of imprisonment with labor for not less than ten months) sentenced by the court below is too unreasonable.

B. The Prosecutor’s assertion that the above sentence of the lower court is too unhued and unreasonable.

2. Determination

A. The following circumstances acknowledged by the lower court’s determination of the Defendant’s assertion of mistake of facts and the evidence duly adopted and investigated by the lower court, namely, ① there was no uncertainty about how the operating profit would occur since the Defendant was prior to the Defendant’s commencement of the said main office at the time when the victim provided joint and several sureties and security. As such, the victim was expected to incur future operating profit.

It seems that the defendant trusted that he had been operating a hotel and preparing a convalescent business (the trial record 69 pages) and that he had been able to pay approximately KRW 200 million out of the acquisition price after he has paid approximately KRW 200 million of the acquisition price (no portion has been paid to the defendant's own money out of the acquisition price) with the loan and the land of this case. The amount of KRW 100 million out of the acquisition price is still unpaid, and the rent, management fee, and monthly salary, etc. basically paid for the operation of the club is about KRW 45 million (Evidence Record 193 pages), and it appears that the defendant without any financial capability, would have been able to pay KRW 100 million solely with the profits of the club, and that the defendant would have been able to incur losses equivalent to the loan, because he has failed to pay the minimum amount of the loan.