The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than five months.

Of the facts charged in the instant case, embezzlement is acquitted.

1. The decision of the court below on the summary of the reasons for appeal (eight months of imprisonment) is too unreasonable.

2. We examine ex officio prior to the judgment on the grounds for ex officio appeal.

When a criminal of telecommunications financing fraud (the so-called Bosishing crime) deceivings a victim and transfers funds from the victim to the account exploited for fraud, the crime of fraud has been terminated (see, e.g., Supreme Court Decision 2010Do6256, Dec. 9, 2010). The criminal has occupied the funds of the victim.

In addition, it cannot be deemed that there was any consignment or fiduciary relationship with the victim, and the offender subsequently withdrawn cash from the account exploited for fraud.

Even if it is difficult to view such withdrawal as infringing new legal interests because it is nothing more than an act planned to commit a crime committed by fraud, it does not constitute a separate embezzlement against the victim of fraud.

This legal doctrine applies likewise to cases where a paper offender who aids and abets the crime of fraud by transferring an access medium to his or another person’s account with the knowledge of the fact that it would be used in the crime of fraud has voluntarily withdrawn the victim’s funds that were remitted to the account used for fraud (see Supreme Court Decision 2017Do3894, May 31, 2017). However, the gist of embezzlement among the facts charged against the Defendant is as follows: (a) even though the Defendant knew of the fact that it would be used in the crime of Bosing fraud, he or she transferred the physical card connected to the name of the Defendant’s bank account to the Defendant’s employee, who was aware of the fact that he or she would be used in the crime of Bosing fraud, and subsequently, he or she made a false statement that he or she would compel the Defendant to borrow by misrepresenting her capital to Korea by transferring the victim’s funds to the said account; and (b) thus, (c) the Defendant embezzled by withdrawing it.

Examining the instant case in light of the legal principles as seen earlier, the criminal defendant of the crime of fraud occupies the funds of the victim.