A. Since the money remitted to the account under the name of the defendant is the money for the fraud crime, even if the defendant withdrawn and used the above money, the above act does not constitute embezzlement because it constitutes an act of ex post facto punishment.

(b) guilty, even

Even if the sentence imposed by the court below (4 months of imprisonment) is too unreasonable.

2. Determination

A. 1) Determination of the misapprehension of the legal principle as to the assertion of misunderstanding of the legal principle is that the custody of property in the crime of embezzlement refers to the actual or legal control over the property. Thus, the custody should be based on a consignment relationship. However, it does not necessarily require a contract such as use lending, lease, delegation, etc., and is established according to business management, custom, cooking, and the good faith principle (see Supreme Court Decision 2012Do16315, Dec. 12, 2013, etc.). In a case where money was wrongfully remitted to a bank account, the custody relationship is established under the good faith principle between the depositor and the remitter. Thus, even if the depositor voluntarily withdraws and consumes the money deposited to his bank account due to the mistake in the remittance procedure, the act constitutes embezzlement, and even if there is no particular transaction relationship between the remitter and the depositor, the defendant does not appear to have any personal custody relationship between the victim and the victim under the good faith principle (see Supreme Court Decision 2010Do891, Dec. 9, 2019, 2019).

It is reasonable to view the Defendant’s voluntary act of withdrawing and consuming it, and the Defendant’s act of withdrawing and arbitrarily consuming it is a victim E separate from fraud for the victim E.