On May 2, 2019, the victim deposited KRW 5.5 million into the account in the name of the defendant in the name of B, which was operated by the victim, at the D office located in Mineyang-si, on May 22, 2019. However, on May 23, 2019, F of the employee of the victim company deposited KRW 5.5 million again as the price for the goods in the above name B, and the defendant had the victim keep the above KRW 5.5 million on behalf of the victim company.

Accordingly, the victim rejected the return even though the victim requested the return of the above 5.5 million won on three occasions, including June 12, 2019, June 21, 2019, and July 9, 2019.

2. Determination

A. Although the account holder did not have any legal relationship causing the remittance and transfer, the account holder is required to return the amount equivalent to the deposit claim acquired by the account transfer to the remitter. Therefore, the account holder should be deemed to have the status of keeping the transferred money for the remitter.

Therefore, the crime of embezzlement is established if the account holder withdraws money from the account holder’s intent to receive the wired money without being kept as it is.

(See Supreme Court en banc Decision 2017Do17494 Decided July 19, 2018 (see, e.g., Supreme Court en banc Decision 2017Do17494, Jul. 19, 2018). However, “Refusal to return” in the crime of embezzlement refers to an act of expressing intent to exclude the owner’s right against the stored goods. As such, the crime of embezzlement is not established solely on the fact that the custodian of another’s property simply refused to return, and the fact that the refusal to return is deemed to be

(see, e.g., Supreme Court Decision 2011Do7637, Aug. 23, 2013). Accordingly, another person’s property is kept.