사기등
The judgment below
Among the victims, the part concerning the return shall be reversed.
The remaining appeal by the defendant is dismissed.
1. The summary of the grounds for appeal (two years of imprisonment) by the lower court is too unreasonable.
2. Determination
A. Prior to the judgment on the grounds of appeal for ex officio determination, the lower court rendered ex officio a decision on the grounds of appeal to the victim’s name in relation to the sum of KRW 2.1 million, which was the sum of the cash confiscated by No. 12 and No. 15
Article 333(1) of the Criminal Procedure Act provides that, as stolen property seized, the reason for return to the victim is clear shall be sentenced to a declaration of return to the victim by judgment. Here, "when the reason for return is apparent" means cases where it is evident that the victim has the right to request the delivery of the seized property under private law, and it cannot be said that there is a clear reason for return in cases where there is a doubt about the above right to claim delivery.
(See Supreme Court Order 84Mo38 Dated July 16, 1984). However, the right to request a transfer of KRW 2,100,000,000, which was seized only by the evidence submitted by the prosecutor, is unclear to each of the victims of each of the instant fraud, and the possibility that all or part of the amount would be a stolen charge that is not included in the instant facts charged cannot be ruled out (the sum of the withdrawn amount of the instant facts charged is 56 million won, and the Defendant was holding a list of cash withdrawal transactions worth KRW 200,000,000 at the time of arrest, and it is difficult to view it as a stolen charge with obvious reasons to return it.
Nevertheless, inasmuch as the part of the court below’s seizure of Nos. 12 through 15 is erroneous in the misunderstanding of legal principles as to the return of the victim, which affected the conclusion of the judgment, the part of the judgment of the court below concerning the return of the victim cannot be maintained.
B. Change in the conditions of sentencing compared with the first instance court's judgment on the grounds for appeal.