횡령
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
However, the period of two years from the date this judgment becomes final and conclusive.
1. The summary of the grounds for appeal is that the defendant is in the position of keeping the amount of fraudulent damage for the victim of telephone finance fraud.
As such, the judgment of the court below is erroneous in the misapprehension of legal principles.
2. Determination
A. On July 8, 2016, the summary of the facts charged: (a) the Defendant embezzled 10 million won for voluntary consumption, such as the purchase of automobiles, which was transferred by the victim C to the Korean bank D account under the name of the Defendant; and (b) the Defendant embezzled 10 million won.
B. The reason why the victim of the judgment of the court below deposited money into the defendant's account is only by deception, and there is a consignment or a fiduciary relationship between the defendant and the victim, separate from the fact that the crime of embezzlement is established.
The charges of this case were acquitted on the ground that they cannot be seen.
(c)
(1) The account holder shall return money equivalent to the amount of fraud damage transferred without any legal relationship with the victim to the victim in the event that the deposit account opened by the account holder in the name of the account is used for the crime of telecommunications financing fraud and the damage to the account transfers the amount of fraud damage to the account. Therefore, the account holder is in the position of keeping the amount of fraud damage for the victim.
It should be seen that if the account holder withdraws the money with the intent to obtain it, the crime of embezzlement is established against the victim.
In this context, if the account holder is an accomplice of fraud, he/she has a custody of the amount of damage as a result of the crime committed by himself/herself, and there is no consignment relationship with the victim. Even if he/she withdraws the transferred money, it cannot be deemed as a violation of new legal interests since it is merely an act of the commission of the fraud committed by himself/herself, and thus does not constitute a separate crime of embezzlement except for fraud (see Supreme Court Decision 2017Do17494, Jul. 19, 2018). 2) The evidence duly adopted and examined by the court below is based on the evidence duly adopted and examined