[1] The standard for determining whether an occupant has intent to acquire unlawful property where another person's property is used without the consent of the occupant

[2] The case holding that there is no intent of unlawful acquisition of the cash card, in case where the victim locked away the cash card from the victim's wall at his own discretion and withdraws the cash from the automatic cash withdrawal machine and immediately returned the cash card to the victim

[1] In cases where the property of another person is used without the permission of the possessor, if the property is used without the permission of the possessor, in which the economic value of the property itself was consumed or used to a considerable extent, or the property is disposed of in a place other than the original one, or it is occupied for a long time without the return, the intention of unlawful acquisition may be recognized by deeming that the owner has the intention of infringing on the ownership or the principal right. However, in cases where the consumption of the value due to the use is insignificant to the extent that it can be disregarded, and where the property is returned immediately after the use, the intention of unlawful acquisition cannot be deemed to infringe on the ownership or principal right

[2] The case holding that there is no intent of unlawful acquisition of the cash card in the case where the cash card was removed from the automatic cash withdrawal machine by taking out the cash card from the victim's lock at his own discretion, and immediately returned the card to the victim

[1] Article 329 of the Criminal Act / [2] Article 329 of the Criminal Act

[1] Supreme Court Decision 84Do311 delivered on April 24, 1984 (Gong1984, 951) Supreme Court Decision 87Do1959 delivered on December 8, 1987 (Gong1988, 306) Supreme Court Decision 92Do118 delivered on April 24, 1992 (Gong192, 1771)

Defendant

Prosecutor

Seoul District Court Decision 98No5068 delivered on July 28, 1998

The appeal is dismissed.

We examine the grounds of appeal.

In cases where the property of another person is used without the consent of the possessor of the property without permission, if the property itself is consumed or used to a considerable extent of economic value of the property in question, or if the property is disposed of in another place other than the original place, or it is in possession of the property for a long time without the return, the intention of unlawful acquisition may be recognized by deeming that it is intended to infringe on the ownership or principal right. However, if the consumption of the value due to the use is minor and so minor, and if the property is returned immediately after the use, it cannot be said that the intention of infringing on the ownership or principal right is not recognized (see, e.g., Supreme Court Decisions 92Do118, Apr. 24, 1992; 87Do1959, Dec. 8, 1987).

However, even if a bank withdraws cash from an automatic machine using a bank's cash card, it cannot be said that the cash card itself was consumed as much as the amount of deposit in which the economic value of the bank was withdrawn, and in this case, the court below affirmed the judgment of the first instance that acquitted the defendant on the ground that the defendant did not have an intent to illegally obtain the above cash card on the basis of the factual basis that he was immediately returned the said cash card to the victim after taking out the cash card of foreign exchange banks owned by the victim from the victim out on a lock-up basis, using the said cash card immediately after making use of the said cash card from the automatic machine, and then immediately returned it to the victim. The judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the intent to illegally obtain the above cash card, as discussed by the prosecutor. There is no ground for appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)