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The judgment below
The non-guilty portion shall be reversed, and this part of the case shall be remanded to the Incheon District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. Where the deposit account opened by the account holder is used to commit the crime of telecommunications financing fraud, and the damage to the account transfers the amount of fraudulent damage to the account, the account holder is in the position of keeping the amount of fraudulent damage for the victim, since he/she returns the money equivalent to the amount of the remittance from the remittance to the victim without any legal relationship with 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 case, if the account holder is the accomplice of the fraud, he/she only kept 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 does not constitute an infringement of new legal interests since it is merely an act of the commission of the fraud committed by him/her, and thus does not constitute a separate crime of embezzlement except fraud (see Supreme Court Decision 2017Do17494, Jul. 19, 2018; Supreme Court Decision 2017Do17494, May 13:30, 206; the summary of embezzlement among the facts charged in this case is as follows: the Defendant was a new bank account opened in the name of the victim in the name of the Defendant (the Defendant borrowed KRW 3,50,000 from his/her own name to his/her own account, KRW 50,500,000, KRW 000 from his/her own account and lent it to the above account at KRW 5,50000,0806,006.
On the contrary, the court below held that the funds of the defrauded were deposited in the account under the name of the defendant.
In addition, it cannot be deemed that there was a consignment relationship or a fiduciary relationship between the defendant and the above victim, and the defendant was used for the crime of fraud thereafter.