점유이탈물횡령등
All appeals by the prosecutor and the defendant are dismissed.
1. Summary of grounds for appeal;
A. The lower court found the Defendant not guilty of this part of the facts charged, even though the Defendant acquired the No.C. C. 3 card lost by the injured party and clearly expressed his intent to obtain unlawful acquisition and use it in accordance with the relevant economic usage. However, the lower court erred by misapprehending the facts.
B. Defendant (a attempted thief) 1 discovered that the thief card owned by the victim was posted on the ATM instrument, and deducted the thief.
It was placed next to the deduction of cash withdrawal machines, and there has not been any attempt to withdraw cash with the said card.
Nevertheless, the lower court found the Defendant guilty of this part of the facts charged erred by mistake.
2) The lower court’s sentence (an amount of KRW 700,000) against an unfair defendant in sentencing is too unreasonable.
2. Determination
A. As to the prosecutor’s assertion, the summary of this part of the facts charged is as follows: (i) the Defendant, on September 19, 2016, obtained the Agricultural C&C card from the victim E, which was placed on the ATM device, and then embezzled for the purpose of his/her use without following the procedure such as returning it to the victim; (ii) the crime of embezzlement is completed by the act of acquiring possession, such as lost property, with the intent of unlawful acquisition; and (iii) the use of another’s property without the consent of the possessor without the consent of the possessor is being consumed or used to the extent that the economic value of the property itself was considerably consumed or used to the extent that the property was not originally consumed or used to the extent that the property was not originally used, or when he/she was in possession of the property without the return time, there is an intent to infringe on the ownership or the right of title.
In addition, the intention of illegal acquisition can be recognized, but it is minor that the consumption of value caused by the use can be disregarded, and it is returned immediately after the use.