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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for one year.
Of the instant facts charged, each of the instant facts charged on September 26, 2016.
Reasons
1. The decision of the court below on the gist of the reasons for appeal (one year and two months of imprisonment) is too unreasonable.
2. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
Of the facts charged in the instant case, the summary of the violation of the Act on Specialized Credit Financial Business on September 26, 2016 is that the Defendant acquired a physical card lost by G on September 25, 2016, and then entered the said physical card in the automatic payment machine and the passwords, etc. over two occasions on September 26, 2016, around 08:24 and around 10:15, and withdrawn the deposit (it is limited to cash in the indictment, but the evidence duly adopted and examined by the lower court can be recognized as the deposit in the account connected to the physical card).
However, the act of withdrawing a deposit by inserting a lost or stolen credit card or debit card under Article 70 (1) 3 of the Act is not included in the concept of fraudulent use under Article 70 (1) 3 of the Act on Specialized Credit Financial Business (see Supreme Court Decisions 2003Do3977, Nov. 14, 2003; 2007Do6927, Oct. 25, 2007). Therefore, the court below erred in the misapprehension of legal principles as to the facts charged in this case when it does not constitute a crime of violation of the Act on Special Cases of Credit Financial Business on September 26, 2016.
3. In conclusion, the judgment below cannot be maintained as it is for the violation of each credit-based financial business law on September 26, 2016 among the judgment below. Since the court below rendered a single sentence on all the remaining convictions in a concurrent relationship with this part under the former part of Article 37 of the Criminal Act, the judgment below should be reversed in its entirety.
Therefore, the sentencing of the defendant is judged.