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The prosecutor's appeal is dismissed.
Reasons
Although the summary of the grounds for appeal did not have become final and conclusive for the Defendant to receive from G Co., Ltd. (hereinafter referred to as “G”), and it was not confirmed that the Defendant would receive a contract for tea or other construction, the Defendant deceivings the victims as if the above facts were confirmed.
In addition, the Defendant did not have the ability to complete the construction of a lodging house for G employees (hereinafter “instant construction”) originally contracted from G, and the Defendant did not have the ability to return KRW 500 million out of the investment money to the victims by the end of November 2013. Therefore, the Defendant’s intent to commit fraud is recognized.
Therefore, the lower court erred by misapprehending the fact that the lower court acquitted the Defendant on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).
Judgment
The burden of proving the facts charged in a criminal trial is to be borne by a public prosecutor, and the conviction shall be based on evidence with probative value that leads a judge to have the truth that the facts charged are true beyond reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant, it shall be determined with the benefit of the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2008Do4467, Jul. 24, 2008; 2010Do9633, Nov. 11, 2010). According to the circumstances acknowledged by the evidence duly adopted and investigated by the court below, the time when the defendant returned the principal amount of 50 million won to the victims by the end of November 2013.
In addition, it is difficult to see that the defendant could no longer proceed with the construction of this case between the first policeman of November 201, 2013 and the first policeman of December 2013 who agreed to explain the progress of the construction of this case to the victims and to receive the investment money.
It is difficult to conclude from G in the future.