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The defendant is innocent. The summary of this judgment shall be notified publicly.
Reasons
1. Around June 22, 2016, the Defendant: (a) at the branch of the Saemaul Bank of Korea, which was located in the North Gunb Movement prior to the North Gunb movement; (b) while keeping 4.5 million won transferred by the victim B to the account of the Saemaul Bank in the name of the Defendant, who was at the end of the influent box’s name that the victim B gave a loan, the Defendant withdrawn the above KRW 4.5 million and embezzled by using it for personal purposes, such as meal expenses.
2. Determination
A. If a criminal of telecommunications financing fraud (the so-called Bosing crime) has received money from a victim by deceiving the victim to transfer the money from the victim to the account using the fraud, then the act of defraudation is consummated.
Therefore, the criminal possessed the money of the victim.
Even if this does not lead to any entrustment or trust relationship between the victim and the victim, there is a status to keep the victim's money.
In addition, the offender withdrawn cash from the account exploited for fraud thereafter.
Even if it is difficult to say that the act is nothing more than the act of the act of the crime of fraud that has been already constituted and thus it infringes on new legal interests, such act of withdrawal does not constitute embezzlement against the victim of the fraud.
In addition, such a legal doctrine likewise applies to cases where a paper offender who aids and abets the crime of fraud by transferring his/her own account access medium even with the knowledge of the fact that he/she would be used to commit the crime of fraud voluntarily withdraws the victim’s money wired to the account exploited for fraud (see Supreme Court Decision 2017Do3045, May 31, 2017). (b) In this case, the prosecutor did not prosecute the fact that the Defendant informed the victim of his/her account number to his/her name in the form of fraud as a paper of fraud; however, insofar as the entrustment or fiduciary relationship between the victim and the offender is not recognized after the crime of fraud, it is not reasonable to recognize the entrustment or fiduciary relationship with the victim separately.