A. The Defendant: (a) died of the Dongin deceased Non-Party 1 (hereinafter “the deceased”); (b) returned Nonindicted 3’s legal status under the deceased’s law to Nonindicted 2 to the Republic of Korea; and (c) returned the money deposited in the deceased’s passbook or remitted the said money to the Defendant’s account in order to use it as a cost for arranging the legal relationship arising from the death of the deceased; and (d) actually used the said money in compliance with such purpose. Thus, the Defendant’s act of withdrawing or remitting money from the deceased’s account to the deceased’s account for the benefit of the deceased or his heir’s interest is for managing his business on behalf of the deceased’s or his heir, and thus, without

B. After withdrawing or remitting KRW 16,540,00 from the deceased’s account, the Defendant transferred KRW 1,460,000 to Nonindicted 2 the Defendant’s money, thereby repaying the deceased’s obligation and bearing Nonindicted 3’s entry expenses. Therefore, it cannot be deemed that the Defendant intended to acquire the above KRW 16,544,00 for the Defendant. Nevertheless, the lower court erred by misapprehending the fact that the Defendant’s act constitutes larceny and fraud using computers, etc., and thereby adversely affecting the conclusion of the judgment.

C. Since the Defendant is related to Nonindicted 4, who is the victim of each of the crimes of this case, the Defendant is exempt from punishment or dismissed pursuant to Article 328 of the Criminal Act applicable mutatis mutandis under Articles 344 and 354 of the Criminal Act.

2. Determination on the grounds for appeal

A. Determination as to the assertion of the above A.B.

(1) The intent of the unlawful acquisition necessary for the establishment of larceny refers to the intent to use and dispose of another person's goods, such as his own property, in accordance with its economic usage. The essence of the crime of fraud is to acquire property or pecuniary benefits by deception, thereby infringing on the other party's property (see Supreme Court Decisions 2000Do3655, Oct. 13, 200; 2003Do4914, Dec. 26, 2003).

(2) As to the instant case, the following facts are acknowledged according to the evidence duly adopted by the Health Team, the lower court, and the first instance court.

(A) On December 24, 2008, the Defendant’s living together visited China as the main line of Nonindicted 2, and agreed to marry with Nonindicted 3, a Chinese citizen. On February 6, 2009, the Defendant reported the marriage. Nonindicted 3 died on February 25, 2009, before entering Korea. The expenses for the marriage to be borne by the Deceased are approximately KRW 8.5 million (the current trial statement of Nonindicted 2) and the serial expenses necessary for Nonindicted 3’s entry into Korea.

(B) On the day of the death of the deceased, Non-Indicted 2 visited the deceased’s empty site and notified the Defendant of the marriage between the deceased and Non-Indicted 3, and Non-Indicted 3 said that, as the deceased’s wife was entitled to inheritance of the deceased’s property with Non-Indicted 4 (the age of 11 at that time) as well as the deceased’s children’s children, Non-Indicted 3 should enter and divorced from the deceased.

(C) On the same day, the Defendant entered a password of KRW 2.1 million from the deceased’s account after withdrawing KRW 14,440,000 from the deceased’s account, and transferred KRW 14,00 from the remaining money to his own account. The Defendant did not obtain Nonindicted 4’s consent (No. 141 of the Investigation Records), and did not notify Nonindicted 5, a person with parental authority, as the former part of the deceased’s wife who visited the deceased’s vacant address on the same day, and as the birth of Nonindicted 4, a person with parental authority.

(D) On March 7, 2009, the Defendant remitted KRW 18 million including KRW 16.54 million (=2.1 million + KRW 14.44 million), which was withdrawn or transferred from the deceased’s account, to Nonindicted 2 on March 7, 2009. However, the Defendant did not specifically confirm, in advance, whether the deceased was actually liable to Nonindicted 2, and did not receive any receipt, etc. in relation to the said money.

(E) Meanwhile, on March 19, 2009, Nonindicted 4 filed a lawsuit with the Seoul Family Court against Nonindicted 3 seeking confirmation that the marriage between the deceased and Nonindicted 3 is null and void. On the part of the Defendant, Nonindicted 4 appointed an attorney for Nonindicted 3 and argued that the marriage between the deceased and Nonindicted 3 is valid. On April 29, 2009, the Defendant sent a letter of invitation stating that “ Nonindicted 3 ought to process the insurance, financial assets, real estate, and movable property of the deceased in Korea and the deceased in the Korean consul stationed in the Republic of Korea, who was stationed in the Republic of Korea on the promotion of April 29, 2009. Nonindicted 3 may be notarized to waive property under the Chinese law, but it is impossible to delegate it to any person, including his family, etc.

(3) The above facts are as follows. ① Of the money received from the Defendant at the time of the lower court and the first instance court’s lawful adoption of evidence, Nonindicted 2 submitted a confirmation of factual relations between Nonindicted 3, an inheritor, at the time of Non-Indicted 4’s entry into the account, and KRW 12 million was first present at the court. The above KRW 6 million was lent to the deceased for the purpose of proving whether the prosecutor lent marriage expenses to Non-Indicted 4, and the above money was added to KRW 12 million to the deceased’s legal representative for the reason that the Defendant did not appear to have been divorced from the deceased’s legal representative’s money (see, e.g., Supreme Court Decision 200, supra; 200,000,000,000,000 won was no more than KRW 4,000,000,000,000,000 for the deceased’s heir’s non-Indicted 4’s legal representative’s own account.)

(4) Therefore, the judgment of the court below which found the defendant guilty is just and acceptable, and even considering all the circumstances alleged by the defendant, there is no error of mistake of facts or of misunderstanding of legal principles as alleged by the defendant in the judgment below, so this part of the defendant's allegation is without merit.

B. Determination as to the above (c) argument

In a case where a person without authority withdraws a deposit using another person's cash card or transfers the balance of a deposit to another financial institution that trades himself/herself, the victim of the theft crime is the manager of an automatic cash withdrawal machine, and the victim of the crime of fraud by using computers, etc. is a financial institution that is a direct party to the transaction of funds transfer and a person who bears the principle of double payment risk (see, e.g., Supreme Court Decisions 95Do97, Jul. 28, 1995; 2006Do4127, Mar. 15, 2007). In such a case, the above provision does not apply to relatives who are premised on the crime between relatives. Accordingly, the defendant's assertion that the provision of the same applies to relatives on the premise that the victim of each of the crimes of this case is Nonindicted 4 is a party is without merit.

3. Conclusion

Therefore, the Defendant’s appeal is dismissed under Article 364(4) of the Criminal Procedure Act as it is without merit. It is so decided as per Disposition (However, under Article 25(1) of the Regulation on Criminal Procedure, the “non-loan number” under Article 19 of the Criminal Procedure Act is applied to “ secret number” and the “14,43,900 won” is added to the “Defendant Agricultural Cooperative” under Article 25(1) of the Regulation on Criminal Procedure, and the “14,90 won” is added to the “1.” The summary of the evidence of the lower judgment is added to the “1. The police examination protocol against the Defendant, the copy of the body of the 1.th, the written autopsy, the copy of the family relation certificate, the copy of the passbook, the reason for invitation, the copy of the register of the Supreme Court, and the confirmation of facts”, and the “Article 437-2” under Article 11 of the Regulation on Criminal Procedure,

Judges Lee Dong-chul (Presiding Judge)

1) The decision of the court below is 14,443,900 won. In light of the evidence, 3,900 won appears to be transfer fee (1,300 won x 3 times).