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The prosecutor's appeal is dismissed.
Reasons
1. Where the withdrawal of the deposited money exceeds the delegated amount as to the summary of the grounds for appeal, the ownership of the deposited money belongs to the delegated person, and the defendant is obligated to keep the deposited money in accordance with the delegation relationship under the good faith principle. However, the judgment of the court below which acquitted the defendant, is erroneous in the misapprehension of legal principles.
2. In a case where the owner of the cash card, who is the owner of the deposit account, entered the amount in excess of the difference into the automatic cash payment machine with the intent to illegally gain profit by means of withdrawing cash in excess of the delegated amount, and withdraws the cash of the amount in excess, the owner of the cash card at the request of the owner of the cash card at the request of the owner of the deposit account, and then acquired possession of the withdrawn amount, and then acquired property profit equivalent to the ratio of the portion in excess of the delegated amount to the withdrawn amount. Thus, the above act constitutes “acquisition of property profit” as provided in Article 347-2 of the Criminal Act regarding the amount in excess of the withdrawn amount (see, e.g., Supreme Court Decision 2005Do3516, Mar. 24, 2006). In light of the circumstances stated in its reasoning, the lower court, based on the following circumstances, deemed that the Defendant acquired the withdrawn amount and the unlawful acquisition (see, e.g., Supreme Court Decision 2005Do3516).
In light of the above legal principles, it is difficult to readily conclude that the portion exceeding KRW 4,727,200, which was duly withdrawn by the Defendant among KRW 4,842,700 that was duly withdrawn by the Defendant, constitutes “property”, and there is a relationship in which the Defendant keeps property for the victim.
On the ground that it is difficult to see that the charged facts of this case were acquitted.
The lower court’s aforementioned determination.