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The prosecutor's appeal is dismissed.
Reasons
1. In full view of the evidence submitted by the prosecutor, including the statement of the victim, the court below erred by misapprehending the fact and thereby not guilty of the defendant, even though the defendant could recognize that he/she would make profits if he/she invests in pawned projects without the intent and ability to repay, and by deceiving the victim to acquire money continuously from the victim.
2. Determination
A. On March 2007, the Defendant made a false statement to the effect that “The victim D, who became aware of in the vicinity of the department store in Songpa-gu Seoul Metropolitan Government, will receive profits from investing money in the operation of the pawned Hall with a high profit in the vicinity of the Gangseo Islands. If investing KRW 10 million in money, he/she will receive profits from one million per month.”
However, in fact, the defendant did not operate the pawnpo, and did not have any occupation at the time and carried out gambling and life in the Gangseodo Casino without any occupation, so even if he received money from the victim, he did not have the intent or ability to make profits from the victim.
As above, the Defendant, by deceiving the victim, has been transferred from March 16, 2007 to the new bank account in the name of the Defendant from September 12, 2007 to September 12, 2007, and continuously transferred KRW 12.3 million on September 16, 2007, KRW 1.5 million on September 9, 2007, KRW 15 million on October 9, 2007, KRW 1 million on December 5, 2007, KRW 500,000 on December 5, 2007, KRW 4.5 million on January 1, 2008, KRW 5 million on January 22, 2008, KRW 7 million on April 15, 2008, KRW 207, KRW 5 million on April 27, 2008, KRW 5 million on the account of the Defendant.
B. The lower court determined as follows, i.e., ① from March 16, 2007 to June 2, 2008, remitted KRW 50,1950,000 to the victim, and the victim transferred KRW 134,77 million to the Defendant, respectively, based on the evidence duly admitted and investigated by the lower court, and the investigation agency, which is part of the facts charged.