1. The summary of the facts charged of the instant case is as follows: (a) the victim, who was under the Defendant’s name in committing the fraud of a person without the name, received a proposal from the Defendant F (the Defendant “E”) to “E to transfer the money deposited in the Defendant’s account from the Defendant’s “E” to another account, thereby notifying the account number; and (b) KRW 540,000 remitted around September 23, 2016; (c) KRW 210,000 remitted; (d) KRW 1,00,000 remitted around the 26th of the same month; and (d) KRW 6,00,000 remitted around the 27th of the same month; and (e) KRW 5,00,000,000 remitted around the 29th of the same month to the Defendant’s account; and (e) KRW 4,99,09,000; and (e) KRW 301,005,010.

In regard to this, the lower court did not deem that there was any consignment or trust relationship between the Defendant and the defrauded, who received the money remitted due to the crime of fraud, and, unlike the case of remittance of mistake, the Defendant used the money remitted due to the crime of fraud.

Even if such an act is nothing more than an act planned to commit a fraud, and thus, it cannot be deemed that the victim's new legal interest is infringed. The circumstance that the defendant's act causes obstruction to tracking the victim's property acquired through the defendant's act does not constitute a crime of stolen property but a new infringement of legal interest, and therefore, it cannot be deemed the ground for recognition of embezzlement as a new infringement of legal interest. Thus, even if the defendant is not an accomplice of fraud, the defendant's act of consuming the transferred money does not differ from the case where the defendant consumes the property acquired by the accomplice of the fraud in relation to the fraud victim.

2. (a) Where a remitter transfers funds to another person’s deposit account, the remitter and the person under the name of the account, unless there are special circumstances.