Defendant shall be punished by a fine of KRW 5,000,000.

The above fine shall not be paid by the defendant.

A. The lower court acquitted the Defendant, and appealed on the grounds of misunderstanding of the legal doctrine, but the Prosecutor appealed prior to the remanding of the case, but rendered a judgment dismissing the appeal by rejecting the prosecutor’s assertion, and the Prosecutor appealed.

B. The Supreme Court accepted the Prosecutor’s ground of appeal and rendered a judgment remanded prior to remanding.

2. The summary of the grounds for appeal is that the Defendant was indicted only for embezzlement on the premise that the Defendant does not constitute an accessory to the crime of telecommunications financing fraud, and that the victim erroneously deposited the money in the name of the Defendant by falling under the crime of telecommunications financing fraud, the Defendant’s custody relationship under the good faith principle is established between the Defendant and the victim, such as the erroneously remitted money. However, the lower court erred by misapprehending the legal doctrine that acquitted the Defendant of the facts charged.

3. Determination

A. On June 22, 2016, the Defendant: (a) at the Saemaul Bank Branch of the Saemaul Bank of Korea, which was located in the North Gunb movement prior to North Korea on the following day; (b) at the end of the name in the name in which the victim B gave a loan, the Defendant withdrawn the above KRW 4.5 million and embezzled it for personal purposes, such as meal expenses, while keeping the amount of KRW 4.5 million transferred to the account of the Saemaul Bank in the name in which the victim B gave a loan.

B. The lower court determined as follows based on the evidence adopted by the lower court: (a) insofar as the prosecutor did not prosecute the Defendant’s account number on the fact that the Defendant informed him/her of his/her account number to his/her name, but did not recognize the entrustment or trust relationship between the victim and the criminal after committing the crime of fraud, there is no ground to recognize the entrustment or trust relationship with the victim only with the third party, and (b) the victim wrongfully remitted money to the account under the name of the Defendant by mistake, inasmuch as he/she did not recognize the entrustment or trust relationship between the victim and the criminal.