The part of the defendant's case against the defendant B shall be reversed.

Defendant

B A person shall be punished by imprisonment for not less than eight months.

A. The punishment sentenced by the lower court (ten months of imprisonment) is excessively unreasonable.

B. Of the facts charged against Defendant A, the lower court acquitted the Defendant on the part that the Defendant withdrawn KRW 763,600 and embezzled five times from July 17, 2018 to July 23, 2018, including KRW 300,000,000, which was remitted from the victim CM, on five occasions.

However, according to evidence, the fact that the defendant embezzleds the victims' money.

Shebly unfair sentencing (with respect to the defendants) sentenced by the court below to the defendants (the defendant A: 10 months of imprisonment, the suspension of execution of 2 years of imprisonment, and the defendant B: 10 months of imprisonment) are excessively unjustifiable and unfair.

2. Judgment on the prosecutor's assertion of mistake of facts

A. If the deposit account opened by the account holder is used in the crime of telecommunications-based financial fraud and the victim wired or transferred the amount of fraudulent damage to the account, the account holder shall return the money equivalent to the amount of fraudulent damage wired or transferred to the victim without any legal relationship with the victim. Therefore, the account holder is deemed to be in the position of keeping the amount of fraudulent damage for the victim. If the account holder withdraws the money with the intent to obtain it, the crime of embezzlement against

At this time, if the account holder is the accomplice of fraud, the account holder is required to keep the victim’s result of the crime committed by himself/herself, and there is no consignment relationship with the victim. Even if the account holder withdrawss the remitted and transferred money, it cannot be deemed as an infringement of new legal interests since it is merely an act of the crime committed by himself/herself, and thus, it does not constitute a separate crime of embezzlement except for fraud (Supreme Court Decision 2018Do9171 Decided September 13, 2018).

In light of the aforementioned legal principles, the Defendant simply transferred the means of access to his/her own account without knowing the fact that he/she would be used for fraud.