The prosecutor's appeal is dismissed.

1. The summary of the grounds for appeal is that the Defendant was indicted only for embezzlement on the premise that it does not constitute a paper crime of fraud due to Bosing. The main issue of the Supreme Court Decision 2017Do3045 Decided May 31, 2017 is not applicable to the instant case.

Rather, such as withdrawal of money remitted by mistake, there is a custody relationship under the principle of good faith with respect to the money erroneously deposited in Bosing as a mistake between the Defendant and the victim. However, on the grounds of the above Supreme Court ruling, the crime of embezzlement is not established against the Defendant.

The judgment of the court below is erroneous in the misapprehension of legal principles.

2. In the reasoning of the judgment, the court below held that the defendant's remittance of money to the account held in the name of the defendant cannot be deemed as an erroneous remittance, and even though there is a defect, it is difficult to view that the relationship of custody under the good faith principle exists since the victim's act of disposal based on the victim's intent of disposition was established. The court below's judgment had already been made in the court below by comparing the above judgment of the court below with the records, and it is just to accept such judgment of the court below.

B. A crime of embezzlement is a criminal whose legal interest is to protect the principal right, such as ownership of another person's property. In this case, the remittance of the victim was made through the act of defraudation by a third party, and thus the infringement of the victim's property right has already occurred by the crime, and therefore, the victim's property right was newly infringed by the withdrawal of the defendant.

It is difficult to see it.

On the other hand, the so-called “misunderstanding remittance” case is merely a remittance made by mistake of a remitter without a third party’s crime, and there is no infringement of the remitter’s property right at the time of remittance.