Defendant 1 and one other

Prosecutor

Kim Jong-Hy, Ojin-hee (Public prosecution), Gu resident flag (public trial)

Attorneys Cho Jae-chul et al.

Seoul Southern District Court Decision 2017Da1882, 2583 (Consolidated) Decided August 23, 2017

All appeals filed by the prosecutor against the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Legal principles

1) The point of fraud

The Defendants are aware of the fact that the passbook and the e-mail card transferred by them would be used for criminal acts, regardless of whether they are illegal sports gambling, and thus, the Defendants constitute a crime of aiding and abetting fraud.

2) The point of embezzlement (main part of Preliminary Facts 1)

Even if the Defendants did not constitute a crime of aiding and abetting fraud, according to the records, there is sufficient reason to view that the Defendants perceived the money deposited in the SC Bank account under Defendant 1 as the money of the victim. As such, there is a consignment relationship between the Defendants and the victim of the Bosing crime.

B. Unreasonable sentencing

The sentence (Defendant 1: 6 months of imprisonment, 2 years of suspended execution, and 6 months of imprisonment) sentenced by the court below to the Defendants is too unfasible and unfair.

2. Determination

A. Judgment on the misapprehension of legal principles

1) The point of fraud

Inasmuch as an act of aiding and abetting under the Criminal Act refers to a direct and indirect act that facilitates the principal offender’s act while knowing that the principal offender is committing a crime, the principal offender’s act of aiding and abetting the principal offender and the principal offender’s act of aiding and abetting and abetting the principal offender ought to have the principal offender’s intent to commit an act that constitutes the elements of a crime. However, since such intent is in depth, if the principal offender denies it, it is inevitable to prove indirect facts that have considerable relevance to the principal offender in light of the nature of the object, and in such a case, there is no other way to reasonably determine the connection of the fact by using the detailed observation or analysis power based on normal empirical rule. In addition, in the case of an aiding and abetting offender, the principal offender’s intent is not required to reasonably recognize the details of the crime realized by the principal offender, and it is sufficient to have dolusence or prediction (see Supreme Court Decision 2012Do2628, Jun. 28, 2012).

However, the court below held that the evidence presented by the prosecutor alone is insufficient to view that the Defendants had the awareness that the means of access would be used for the crime of fraud at the time of transfer, and that there is no other evidence to acknowledge it. In light of the above judgment of the court below, the court below is justified in closely comparing the above judgment with the records, and contrary to the prosecutor's assertion, there is no error of

2) The point of embezzlement

In full view of the circumstances as shown in the reasoning of the lower judgment duly admitted and examined by the evidence, the lower court determined that the consignment relationship between the Defendants, the employees of Bosing and the Defendants, and the victim of Bosing Nonindicted 1 (the Nonindicted Party) of the crime of embezzlement cannot be deemed to exist, and no other evidence exists to acknowledge that the money deposited in the SCB bank account with Defendant 1 was found. In so determining, the lower court is justifiable in light of the records and records, and it did not err by misapprehending the legal doctrine, which affected the conclusion of the judgment, contrary to the Prosecutor’s assertion.

B. Determination on the assertion of unfair sentencing

Since the transfer of the means of access to electronic financial transactions is easy to commit additional crimes, such as singing, illegal money laundering, etc., it is necessary to strictize such act. Defendant 2 transferred the means of access over two occasions, Defendant 1 introduced to commit an offense, and Defendant 1 was sentenced to a fine three times or more for violent crimes, and Defendant 2 did not assault Nonindicted 2 of the victim and endeavor to recover the damage at the minor cost even though there was a history of being sentenced to a fine for an offense of violence.

However, Defendant 2 agreed with the victim non-indicted 1, Defendant 1 was the first offender, the degree of participation in the electronic financial transaction is relatively minor, and only once the frequency of transfer is limited to only one time.

In full view of these circumstances, the sentence imposed by the lower court on the Defendants is deemed appropriate and unreasonable, taking account of all the sentencing conditions in the instant records and arguments, such as the method of committing the crimes, the developments leading up to the crimes, and the circumstances after the crimes.

3. Conclusion

Therefore, the appeal by the prosecutor against the defendants is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Yong-sung (Presiding Judge)

1) The lower court rendered a not-guilty verdict on all the charges of primary and preliminary embezzlement, and the prosecutor filed an appeal only for the primary embezzlement part among them, but the effect of the appeal on the part of the primary and preliminary embezzlement reaches the remainder of the charges, and thus, the primary charges also are subject to the judgment of the appellate court (see Supreme Court Decision 2006Do1146, May 25, 2006).