[1] The meaning of "a person who keeps another's property" as the principal agent of embezzlement and the standard for determining whether the person constitutes such person

[2] In a case where the remitter transfers or transfers money to another person’s deposit account and the account holder acquires a deposit claim equivalent to the amount of money by means of remittance or transfer even though there is no legal relationship causing remittance or transfer between the remitter and the account holder, whether embezzlement is established if the account holder withdraws money with the intent to obtain money without keeping the wired money as it is (affirmative) / In a case where the deposit account opened by the account holder is used in the crime of telecommunications-based financial fraud and the victim wired or transferred the money to the account, whether embezzlement is established if the account holder withdraws money with the intent to obtain the money (affirmative with restriction), and whether the act of withdrawal by the account holder also constitutes embezzlement (negative)

[3] In a case where Defendant A and B conspired to transfer the means of access to the deposit account opened in the name of Defendant B to Bosing staff Byung, aiding and abetting telecommunications-based financial fraud on Byung’s schedule, and subsequently, they voluntarily withdrawn part of the amount of fraudulent damage that was remitted to the said account by a party to the fraud victim Byung, using a separate means of access, thereby embezzlement of Byung’s primary property and conjunctive property; and the lower court acquitted the Defendants of all the charges of fraud assistance and embezzlement, the case holding that, insofar as the Defendants did not constitute the crime of aiding and abetting fraud, the act of arbitrarily withdrawing part of the amount of the fraudulent damage constitutes embezzlement against the defrauded.

[1] The principal agent of embezzlement under Article 355(1) of the Criminal Act refers to a person who keeps another’s property. Here, the custody refers to the possession of property through a consignment relationship. As such, in order to constitute embezzlement, a consignment relationship must exist between the custodian of the property and the owner of the property (or the owner of other principal authority). Such consignment relationship is sufficient and the criminal defendant does not necessarily have to be a party to a civil contract. A consignment relationship is ordinarily arising from a contract such as loan, lease, delegation, deposit, etc., but is not limited, but may arise according to the provisions of the law such as business management, custom, cooking, or good faith. However, in light of the fact that the intrinsic nature of embezzlement unlawfully acquires another’s property entrusted, the consignment relationship is limited to that that is worth protecting the crime of embezzlement. Whether there is a consignment relationship is determined by considering the relationship between the custodian of the property and the owner of the property, the circumstances leading up to the custody of the property, etc., and whether there is a need to maintain the status of custody under the criminal law.

[2] [Majority Opinion] In a case where a remitter wired money to another person’s deposit account, barring any special circumstance, the account holder and the recipient bank formed a deposit contract with respect to the money, regardless of whether there exists a legal relationship causing the remittance and transfer between the remitter and the account holder, and the account holder obtains a deposit claim equivalent to the amount from the recipient bank. In such a case, even if there is no legal relationship causing the remittance and transfer between the remitter and the account holder, if the account holder acquires the deposit claim equivalent to the amount by means of remittance and transfer, the account holder must return the money to the remitter. As such, even if there is no legal relationship causing the remittance and transfer, the account holder should return the money equivalent to the deposit claim acquired by the account transfer to the remitter. Therefore, the account holder is deemed to have the status of custody of the remitter with respect to the money wired and transferred as such. Therefore, embezzlement is established if the account holder withdraws money with the intent to acquire the money without keeping it as it is.

This legal doctrine likewise applies to a case where the deposit account opened by the account holder is used in the crime of telecommunications-based financial fraud and the victim wired or transferred the amount of fraudulent damage to the account. Since the account holder return the money equivalent to the amount of fraudulent damage wired or transferred without any legal relationship with the victim to the victim, it is deemed that the account holder is in the position of keeping the amount of fraudulent damage for the victim. If the account holder withdraws the money with the intent to obtain the money, then the crime of embezzlement against the victim is established. If the account holder withdraws the money with the intent to obtain the money, then there is no consignment relationship with the victim, and even if the account holder withdraws the money wired or transferred, it cannot be deemed as infringing on new legal interests, as it is merely an act of committing the crime of fraud committed by him/her, and thus, it does

On the other hand, the account holder's withdrawal does not constitute embezzlement in relation to the telecommunications-based financial fraud offender.

(1) Even if the account holder transferred the means of access to a deposit account to the telecommunications-based financial fraud offender, insofar as the account holder still has the right to claim the return of deposit against the bank as the party to the deposit contract, the money wired to the account cannot be deemed to have been reverted to the recipient of the said means of access. The recipient of the means of access is merely able to exercise his/her right to claim the return of deposit by the account holder, and does not acquire the deposit itself. The Supreme Court held that if the money of the victim was wired to the account using the means of access due to the telecommunications-based financial fraud, the act of defraudation is deemed to have been completed. This means that the defrauded has reached the status of withdrawing the money using the means of access,

② In addition, the relationship between the account holder and the telecommunications-based financial fraud offender is not a consignment relationship worth protecting in the crime of embezzlement. The act of the defrauded to remit or transfer money to the account exploited in the name of a third party constitutes a criminal act in itself. Moreover, since the defrauded’s use of said account constitutes the act of committing a telecommunications-based financial fraud, protecting the relationship between the account holder and the defrauded as the crime of embezzlement would result in devolving the money wired or transferred upon the crime on the defrauded.

[Concurring Opinion by Justice Kim So-young, Justice Park Sang-ok, Justice Lee Ki-taik, and Justice Kim Jae-hyung] The Majority Opinion’s logic is difficult for the following reasons

(1) No consignment relationship exists between the account holder and the defrauded.

If money is remitted from the defrauded to the account exploited for fraud, the act of telecommunications-based financial fraud is terminated and the telecommunications-based financial fraud crime is committed. Since the crime of fraud is established upon the receipt of property or acquisition of pecuniary gains, it is the acquisition of property or pecuniary gains. The defrauded loses ownership of the said money by remitting or transferring money. Meanwhile, even if the defrauded may subsequently exercise an obligatory right against the telecommunications-based financial fraud offender, such as a claim for damages or a claim for restitution of unjust enrichment, or receive a refund for loss pursuant to the Special Act on the Prevention of Loss Caused by Telecommunications-based Financial Fraud and Refund of Damages (hereinafter “Telecommunications Fraud Refund Act”), it is merely a means to recover losses ex post. The mere fact that the defrauded has the means to recover the loss, does not necessarily mean that the defrauded has ownership of the money already remitted to the account exploited for fraud. Under such circumstances, there is no new infringement of legal interests that exceed the ownership already occurred to the defrauded.

The Majority Opinion argues that the consignment relationship between the account holder and the defrauded is established, and presents precedents on wrongful remittance. However, since remittance and transfer resulting from the commission of telecommunications-based financial fraud differs from erroneous remittance, the legal doctrine on wrongful remittance cannot be applied. The Supreme Court’s error remittance case acknowledged by the Supreme Court under the good faith principle is the case where the remitter himself/herself erroneously wired money. On the other hand, the remittance and transfer of money from the defrauded to another person’s account constitutes a telecommunications-based financial fraud by the recipient of the means of access in another’s name (hereinafter “the recipient of access media”). This is based on a fiduciary relationship under the agreement between the account holder and the recipient to transfer the means of access to use the means of access, but he/she does not arbitrarily withdraw the money deposited in the account. The transfer of the means of access, provision of the means of remittance and transfer as a means of deception by the recipient, and the remittance and transfer of the defrauded are combined with the cause and the cause of the wrongful remittance, which differs from the case where the recipient of the means of access is directly involved in the remittance and transfer.

(2) Inasmuch as the consignment relationship between the account holder and the recipient is recognizable, if the account holder withdraws money deposited in the relevant account, embezzlement against the recipient of the means of access is established.

An agreement between the account holder and the recipient of the means of access regarding the custody of the money wired or transferred to the relevant account may be deemed to exist.

In a case where a title trust without intermediate registration was made in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), the Supreme Court ruled that the consignment relationship in the crime of embezzlement was reasonable, provided that the trust relationship is a new trust worth protecting the crime of embezzlement. However, the trust agreement itself becomes null and void in accordance with the Real Estate Real Name Act. On the other hand, in a case where money was transferred and transferred from a defrauded, insofar as the account holder was unaware of the telecommunications-based financial fraud, there is no obvious ground to deem that the agreement with the recipient is null and void or that the custody of money constitutes illegal consideration. As such, even in a case where a causal relationship is null and void or it is difficult to deem that the custody of money constitutes illegal consideration, the establishment of embezzlement is not denied.

(3) Even if following the Majority Opinion, the defrauded does not protect the defrauded more strongly, and the legal relationship becomes complicated. Even if the consignment relationship between the account holder and the defrauded is not recognized, the defrauded may protect the defrauded in civil law. The defrauded may file a claim for restitution of unjust enrichment against the account holder, and if the account holder is negligent, a claim for damages arising out of tort may be filed against the account holder. Furthermore, by taking the claim for damages against the recipient of the means of access as the preserved right, the recipient may claim the return of money based on the consignment relationship against the account holder in subrogation of the recipient of the means of access. In addition, the victim may receive the refund money for loss pursuant to

④ In conclusion, if the account holder who was unaware of the telecommunications-based financial fraud withdraws the money wired to the account, the crime of embezzlement against the recipient of the means of access is established and the remitter is not charged with embezzlement.

[Dissenting Opinion by Justice Jo Hee-de] Of the remitter and the recipient of the means of access, the crime of embezzlement is not established. The reasons are as follows.

(1) Since the consignment relationship between the account holder and the recipient is not based on trust worth protecting under the Criminal Act, the crime of embezzlement against the recipient of the means of access is not established.

(2) Since there is no consignment relationship between the account holder and the remitter, the remitter is not charged with embezzlement.

The Majority Opinion recognizes the consignment relationship between the account holder and the remitter based on the legal doctrine on wrongful remittance. However, since the wrongful remittance relates to the legal relationship between the remitter and the account holder, it cannot be applied to the instant case separate from the remitter. Furthermore, the Majority Opinion argues that the Supreme Court Decision regarding the wrongful remittance can be applied to the instant case immediately based on the Supreme Court Decision that the remitter has the right to claim restitution of unjust enrichment against the account holder. However, the Supreme Court Decision regarding wrongful remittance is the case where the account holder was aware of the existence of the right and duty to return unjust enrichment or of the cause thereof. Even if the remitter had the right to claim restitution of unjust enrichment against the account holder, if the remitter had withdrawn the money without knowing that such right, duty, or cause had occurred, then the remitter cannot be recognized as embezzlement against the remitter.

An account holder is not guilty if the consignment relationship is between the recipient of the means of access and the consignment relationship is not based on trust that is able to protect under the Criminal Act. There is no consignment relationship between the account holder and the remitter, and it cannot be deemed that the actor has the intent to do so.

[3] In a case where Defendant A and B conspired to transfer the means of access to a deposit account opened in the name of Defendant B to Bosing staff Byung, aiding and abetting telecommunications-based financial fraud in Byung, and then arbitrarily withdrawing part of the fraudulent damage that was remitted to the said account by the defrauded Byung, using a separate means of access, and thereby embezzlement of Byung’s primary property and conjunctive property; and the lower court acquitted the Defendants of all the charges of fraud assistance and embezzlement, the case holding that the lower court erred by misapprehending the legal principles as to consignment relation in the crime of embezzlement, etc., on the ground that the Defendants’ act of arbitrarily withdrawing part of the fraudulent damage to the extent that the crime of aiding and abetting was not established, and thus, the lower court acquitted the Defendants of the primary charge that deemed Byung as the victim of embezzlement among the charges, on the ground that the crime of aiding and abetting was established. However, the lower court acquitted the Defendants of the primary charge that deemed the victim as the victim.

[1] Article 355(1) of the Criminal Act / [2] Articles 32, 347, and 355(1) of the Criminal Act / [3] Articles 30, 32, 347(1), and 355(1) of the Criminal Act

[1] [2] Supreme Court en banc Decision 2014Do692 Decided May 19, 2016 (Gong2016Sang, 817) / [1] Supreme Court Decision 84Do2644 Decided September 10, 1985 (Gong1985, 1363) Supreme Court Decision 2003Do207 Decided July 11, 2003 / [2] Supreme Court Decision 91Da9312 Decided February 25, 1992 (Gong192, 1114), Supreme Court Decision 205Do5975 Decided October 28, 2005 (Gong205Ha, 192, 1920), Supreme Court Decision 2007Da201379 decided Nov. 29, 2007 (Gong2014, 2015Do20175 decided Nov. 29, 2007)

Defendant 1 and one other

Prosecutor

Seoul Southern District Court Decision 2017No1785 decided October 10, 2017

The part of the lower judgment’s embezzlement is reversed, and that part of the case is remanded to the Seoul Southern District Court. The Prosecutor’s remaining appeal is dismissed.

The grounds of appeal are examined.

1. Summary of the facts charged and the judgment below relating to the issue of this case are as follows.

A. On February 12, 2017, the Defendants: (a) delivered Defendant 1’s deposit passbook of the deposit account (hereinafter “instant account”) opened in the name of the SC Bank to Defendant 1; and (b) transferred the means of access to electronic financial transactions by providing the said account with one OTP card connected to the said account. On February 14, 2017, the Defendants misrepresented the Nonindicted Party to conduct an inspection by telephone around 09:00 on February 13, 2017; (c) “A bank account was opened in the name of the new bank and used for a crime.” Since the name was stolen, Nonindicted Party released money from a financial institution to prevent additional damage; and (d) released the money from the said account at will after checking the relationship of crime; and (e) subsequently, Nonindicted Party 1 voluntarily released the money from the said account by using the said account at around 103:160,000 won (hereinafter “the date of the instant fraud”).

As a result, the Defendants conspired and abetted the Nonindicted Party to commit fraud by transferring the means of access to the instant account, and ② arbitrarily withdrawing KRW 3 million out of the amount of fraud in the instant case, and embezzled the property of the Nonindicted Party to whom the means of access to the instant account was taken over, and the property of the Nonindicted Party to be conjunctively.

B. On the grounds delineated below, the lower court acquitted all of the charges on this part of the charges. The Defendants were not guilty on the grounds that there is no evidence to deem that the Defendants were aware that the instant account would be used for the crime of Bosing. The embezzlement is not guilty on the grounds that not only the Bosing employee who acquired the means of access to the instant account but also the Nonindicted Party did not constitute a consignment relationship with respect to the custody of the instant fraud amount, and thus, all of the primary and ancillary charges are not guilty.

2. The allegation in the grounds of appeal on the charge of aiding and abetting the Defendants’ fraud and aiding and abetting the Defendant 2’s fraud is merely an error with the selection of evidence and fact-finding, which belong to the exclusive jurisdiction of the lower court, which is a fact-finding court, and thus does not constitute a legitimate ground of appeal. Therefore, the key issue of the instant case is whether embezzlement is established in cases where a third party (hereinafter “account holder”) voluntarily withdraws from the victim’s account due to telecommunications-based financial fraud to a fraud account in the name of a third party (so-called a fraud account) and if so, the victim of embezzlement is the victim of embezzlement.

3. A. The principal agent of embezzlement under Article 355(1) of the Criminal Act refers to a person who keeps another’s property. Here, the custody refers to possessing another’s property through a consignment relationship. As such, in order to constitute embezzlement, a consignment relationship between the custodian of the property and the owner of the property (or any other principal authority) must be established. Such consignment relationship is sufficient if the principal is de facto in a consignment relationship, and there is no need for the criminal defendant to be a party to a civil contract. Although the consignment relationship is ordinarily arising from a contract such as loan, lease, delegation, or deposit, etc., but it may arise by the provisions of the law, customs, cooking, or the good faith principle, such as office management, without doing so (see, e.g., Supreme Court Decisions 84Do2644, Sept. 10, 1985; 2003Do2077, Jul. 11, 2003).

B. Where a remitter remitted or transferred money to another person’s deposit account, barring any special circumstance, a deposit contract is established between the remitter and the receiving bank as to the money, regardless of whether there exists a legal relationship causing the remittance or transfer between the remitter and the account holder; and the account holder shall acquire a deposit claim equivalent to the amount from the receiving bank. In such cases, even if there is no legal relationship causing the remittance or transfer between the remitter and the account holder, if the account holder acquires the deposit claim equivalent to the amount by means of remittance or transfer, the account holder must return the money equivalent to the amount to the remitter (see Supreme Court Decision 2007Da51239, Nov. 29, 2007, etc.). As such, even if the account holder did not have a legal relationship causing the remittance or transfer, the account holder is deemed to have the status of custody of the remitter with respect to the wired money. Therefore, if the account holder withdraws money as such, then the account holder is deemed to have been held as the remitter’s deposit account.

This legal doctrine likewise applies to a case where the deposit account opened by the account holder is used in the crime of telecommunications-based financial fraud and the victim wired or transferred the amount of fraudulent damage to the account. The account holder return money equivalent to the amount of fraudulent damage wired or transferred without any legal relationship with the victim (see Supreme Court Decision 2013Da207286, Oct. 15, 2014). As such, the account holder is deemed to have the status of keeping the amount of fraudulent damage for the victim. If the account holder withdraws the money with the intent to receive the money, then the crime of embezzlement against the victim is established. If the account holder withdraws the money with the intent to receive the money, the damage amount was kept as the result of the crime he/she participated, and there is no consignment relationship with the victim, even if the account holder withdraws the money wired or transferred, it cannot be deemed as infringing on new legal interests, and thus, it does not constitute a separate crime of embezzlement (see, e.g., Supreme Court Decision 2017Do3045, May 317).

C. Meanwhile, the account holder’s withdrawal does not constitute embezzlement in relation to the telecommunications-based financial fraud offender.

(1) Even if the account holder transferred the means of access connected to the deposit account to the telecommunications-based financial fraud offender, insofar as the account holder still has the right to claim the return of deposit against the bank as the party to the deposit contract, the money wired to the account cannot be deemed as having been reverted to the recipient of the said right. The recipient of the means of access is merely able to exercise his/her right to claim the return of deposit by the account holder, and does not acquire the deposit itself. The Supreme Court held that if the money of the victim was wired to the account used in fraud due to the telecommunications-based financial fraud, the act of defraudation is deemed to have been completed (see, e.g., Supreme Court Decisions 2010Do6256, Dec. 9, 2010; 2017Do3045, supra). This means that the defrauded has reached a state where he/she can withdraw the money using the means of access, and it does not mean that the defrauded

(2) In addition, the relationship between the account holder and the telecommunications-based financial fraud offender is not a consignment relationship worth protecting the crime of embezzlement. The act of the defrauded to remit or transfer money to the account exploited in the name of a third party constitutes a criminal act in itself. Moreover, the use of the account by the defrauded constitutes the act of committing the telecommunications-based financial fraud, thereby protecting the relationship between the account holder and the defrauded as the crime of embezzlement is not correct.

D. Examining the instant case based on the foregoing legal doctrine, insofar as the Defendants did not commit the crime of aiding and abetting fraud, the act of arbitrarily withdrawing KRW 3 million out of the amount of the instant fraud damage ought to be deemed to constitute embezzlement against the Nonindicted Party.

Therefore, the lower court is justifiable to have rendered a not guilty verdict of the primary charges against the embezzlement of the instant facts charged. However, the lower court erred by misapprehending the legal doctrine as to the consignment relationship in the crime of embezzlement, etc., while rendering a not guilty verdict of the ancillary charges against which the Nonindicted Party as the victim is the victim. The allegation contained in the grounds of appeal on this point is with merit.

4. Therefore, the part of the judgment of the court below regarding the conjunctive charge of embezzlement should be reversed, and accordingly, the part concerning the primary charge in relation to the same body should be reversed together. Thus, the part concerning the embezzlement among the judgment of the court below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion, and the prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Kim So-young, Justice Park Sang-ok, Justice Lee Ki-taik, and Justice Kim Jae-hyung who decided differently from the majority opinion regarding the victim of embezzlement, and by

5. Separate opinion by Justice Kim So-young, Justice Park Sang-ok, Justice Lee Ki-taik, and Justice Kim Jae-hyung is as follows.

A. The gist of the Majority Opinion is that, in cases where the recipient of the means of access to another person’s account (hereinafter “user of access media”) committed a telecommunications-based financial fraud and then wired money from the defrauded to the said account, a consignment relationship between the account holder and the defrauded is established as to the said money, and there is no consignment relationship between the account holder and the recipient to protect the said money as embezzlement. Therefore, the crime of embezzlement against the defrauded is established and the crime of embezzlement against the recipient of the means of access is not established. However, the logic of the Majority Opinion is difficult to agree on the following grounds.

B. There is no consignment relationship between the account holder and the defrauded.

(1) If money is remitted or transferred from the defrauded to the account used for fraud, the act of telecommunications-based financial fraud is terminated and the telecommunications-based financial fraud crime is already committed (see Supreme Court en banc Decision 2015Do15101, Feb. 19, 2016). Since fraud is established upon the receipt of property or acquisition of pecuniary benefits, acquisition of property or pecuniary benefits has been gained. The defrauded loses ownership of the said money by remitting or transferring money. In this case, the defrauded loses ownership by deceiving the recipient of the means of access that “the defrauded would return money after confirming the criminality.” However, the said expression merely merely was the content of the deceptive act that the recipient of the means of access transferred or transferred money, it is difficult to deem that the consignment relationship between the account holder and the defrauded has arisen or that the defrauded maintains ownership.

Meanwhile, even if the defrauded may subsequently have a obligatory claim against the telecommunications-based financial fraud offender, such as a claim for damages or a claim for restitution of unjust enrichment, or receive a refund for loss pursuant to the Special Act on the Prevention of Loss Caused by Telecommunications-based Financial Fraud and Refund of Damages (hereinafter “Telecommunications-based Financial Fraud Refund Act”), it is nothing more than a means to recover losses ex post. The mere fact that the defrauded has the aforementioned means to recover the damage does not necessarily mean that the defrauded still has ownership to the money wired or transferred to the account exploited for fraud. Under such circumstances, even if the account holder withdraws the wired money, there is no new infringement of legal interest exceeding the ownership infringement already occurred to the defrauded.

(2) The Majority Opinion argues that the consignment relationship between the account holder and the defrauded is established, based on which the precedent regarding wrongful remittance is cited. However, since remittance and transfer resulting from the crime of telecommunications-based financial fraud differs from the wrongful remittance, the legal doctrine regarding wrongful remittance cannot be applied.

(A) The Supreme Court held that, inasmuch as the cause of custody of property in the crime of embezzlement does not necessarily need to be attributable to a party’s consignment, in a case where money was wrongfully transferred and deposited into a certain account, a custody relationship is established between the account holder and the remitter. The act of the account holder voluntarily withdrawing and consuming the money deposited in his/her name constitutes embezzlement; and the same applies to the act of the remitter and the account holder without any particular transaction relationship (see, e.g., Supreme Court Decision 2010Do891, Dec. 9, 2010).

(B) The error remittance case in which the Supreme Court recognizes the establishment of a custody relationship under the good faith principle is the case where the remitter has mistakenly remitted the money by mistake. On the other hand, the fact that the money was wired from the defrauded to the account used for fraud is the result of the telecommunications-based financial fraud committed by the recipient of the means of access. This is based on a fiduciary relationship under the agreement that the account holder transferred the means of access to the recipient and would allow him/her to use the account, but he/she would not arbitrarily withdraw the money deposited in the said account. The transfer of the means of access, provision of the cause of remittance and transfer by means of deception of the recipient, and the remittance and transfer of the defrauded are combined with the cause. It is distinguishable from the case of an error remittance in that the recipient of the means of access directly participates in the cause and result of the remittance and transfer.

(C) In a wrongful remittance case, the account holder is aware that the said money was wrongfully wired and used. In other words, the account holder, despite being aware that the money was wrongfully wired and thus ought to be returned to the remitter, was withdrawn in violation of such relationship with the remitter. However, in a case where the defrauded wired and transferred money, the account holder was unaware of what circumstances the money was deposited and was only aware that the money was deposited due to the cause related to the recipient of the means of access. The account holder is aware that the money wired and transferred was withdrawn in violation of the agreement with the recipient of the means of access, and there is no perception that the account holder would withdraw the money wrongfully wired or transferred or withdraw the money to be returned to the remitter.

According to the Majority Opinion, it is the core illegal element that remittance and transfer was made due to the crime of telecommunications-based financial fraud. Accordingly, the crime of embezzlement against the defrauded is established and the crime of embezzlement against the recipient of the means of access is not established. The Majority Opinion recognizes conviction against the account holder even though he/she did not have awareness of such an essential illegal element, and thus, contradicts the principle

(D) There is criticism that the recognition of embezzlement in a mistake remittance case also expands punishment by the general principle of good faith, or that it is difficult to deem that the trust relationship between the parties may be formed based on one party’s unilateral trust. Such error remittance doctrine is limited to that case, and does not extend from the application of such legal doctrine to telecommunications-based financial fraud case.

(E) The expansion of the legal doctrine of an erroneous remittance from the victim of telecommunications-based financial fraud to the case where the money was remitted or transferred is likely to excessively expand the consignment relationship in the crime of embezzlement.

In such a case, when applying the legal doctrine of erroneous remittance, the logic leads to the logic that a person who committed a general loan fraud, which is not a telecommunications-based financial fraud, receives money from the victim to a borrowed account can also be applied even if he/she receives money from the victim. The telecommunications-based financial fraud crime is committed against a specific or unspecified person and has considerable amount of social damage. However, property crime is a crime protecting personal legal interests, and is an independent crime committed by each victim. Therefore, examining the relationship between the defrauded, victim, and account holder in each crime, there is no reason to treat the case differently.

However, inasmuch as a consignment relationship between the account holder and the victim is established on the ground that the money of the victim was wired to the borrowed-name account due to a general fraud or attack, the consignment relationship between the account holder and the remitter cannot be acknowledged even in cases where money is wired to the borrowed-name account regardless of the type of crime. Such logic can lead to excessively expanding the consignment relationship in the crime of embezzlement, thereby making the concept itself ambiguous, and causing conflict between the account holder and the recipient of the means of access.

C. Since the consignment relationship between the account holder and the recipient can be recognized, if the account holder withdraws money deposited in the said account, embezzlement against the recipient of the means of access is established.

As seen earlier, the agreement between the account holder and the recipient of the means of access may be deemed to exist regarding the custody of the money wired to the said account.

In a case where the title trust of a type omitted registration was made in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), the Supreme Court ruled that the trust relationship in the crime of embezzlement was reasonable by deeming that the trust relationship was a new trust worth protecting the crime of embezzlement (see, e.g., Supreme Court en banc Decision 2014Do6992, May 19, 2016). However, the trust agreement itself becomes invalid in accordance with the Real Estate Real Name Act. On the other hand, in a case where money was remitted and transferred from the defrauded, insofar as the account holder was unaware of the telecommunications-based financial fraud, there is no obvious ground that the agreement with the recipient is invalid or that the custody of money constitutes illegal consideration. As can be seen, the establishment of the crime of embezzlement is not denied even in a case where the causal relationship is invalid or the custody of money is difficult to be deemed illegal consideration.

D. Even if following the Majority Opinion, the defrauded does not protect the defrauded more strongly, but rather the legal relationship becomes complicated.

(1) Even if the consignment relationship between the account holder and the defrauded is not recognized, the defrauded may be protected in civil way. The defrauded may file a claim for restitution of unjust enrichment with the account holder (see, e.g., Supreme Court Decision 2013Da207286, Oct. 15, 2014). In addition, if the account holder was negligent, a claim for damages arising from tort may be filed against the account holder (see, e.g., Supreme Court Decision 2013Da9574, May 14, 2015). Moreover, by taking the claim for damages arising from tort against the recipient of the means of access as the preserved claim, the recipient of the means of access may demand the account holder to return money based on the consignment relationship (see, e.g., Supreme Court Decision 91Da9312, Feb. 25, 1992). Moreover, the defrauded may receive the refund money pursuant to the Telecommunications Fraud Refund Act.

(2) The Majority Opinion does not clearly state whether the account holder is guilty in the event the account holder withdraws part of the total amount of money when money was transferred from a number of victims or the money of the recipient of the means of access is partially deposited. If the purport of conviction is that it is guilty, it is difficult to determine the number of crimes. It is not natural to specify the victim of the crime of embezzlement as a victim of the crime of embezzlement in the status where all the names of the defraudeds are confirmed. If some of the victims are relatives, it is unclear whether the provision regarding the crime between relatives (Articles 354 and 328 of the Criminal Act) can be applied. On the other hand, if embezzlement against the recipient of the means of access is recognized.

E. In conclusion, if the account holder who was unaware of the telecommunications-based financial fraud withdraws the money wired to the account, the crime of embezzlement against the recipient of the means of access is established and the remitter is not charged with embezzlement.

F. Nevertheless, the lower court acquitted the Defendants of the primary charge of embezzlement. In so determining, the lower court erred by misapprehending the legal doctrine on consignment relationship in the crime of embezzlement. Therefore, the part of the lower judgment’s embezzlement should be reversed.

As above, I express my concurrence with the Majority Opinion regarding the conclusion of the instant case, but with different reasons.

6. Dissenting Opinion by Justice Jo Hee-de

A. As to the account holder’s withdrawal act, the Majority Opinion states that embezzlement against the remitter is established, and the separate opinion states that embezzlement against the recipient of the means of access is established. However, the crime of embezzlement is not established against anyone among the remitter and the recipient of the means of access. The reasons are as follows.

B. Since the consignment relationship between the account holder and the recipient is not based on trust worth protecting under the Criminal Act, the crime of embezzlement against the recipient of the means of access is not established. Therefore, the primary charge premised on the establishment of embezzlement against the recipient should be acquitted.

C. Since there is no consignment relationship between the account holder and the remitter, the crime of embezzlement is not established against the remitter. Therefore, the remitter ought to be acquitted of the conjunctive charges premised on the establishment of embezzlement against the remitter.

(1) In order to establish embezzlement, an actor must be in the position of custody of another’s property. Here, the custody refers to the possession of property by a consignment relationship. In principle, consignment relationship is based on a contract, and even if there is no contract, it may be based on statutory provisions, custom, cooking, or good faith principle.

(2) In this case, since the recipient of the means of access requested the account holder to keep money, there exists a consignment relationship under a contract between the account holder and the recipient of the means of access. As long as a consignment relationship exists under a contract, the consignment relationship may not be acknowledged based on custom, reasoning, and good faith. Even if the consignment relationship under a contract is not based on trust worth protecting under the Criminal Act, the contract itself cannot be deemed null and void or the consignment relationship does not exist under a contract. A consignment relationship based on custom, reasoning, and good faith can only be acknowledged in cases where there is no consignment relationship under a contract contrary to the contract.

Since embezzlement is a property crime that protects the consignment relationship under the Criminal Act, in principle, the consignment relationship should be determined based on the Civil Act and the Commercial Act. In this case, a contractual consignment relationship was established between the account holder and the recipient of the means of access. Moreover, the lower court acquitted the account holder of the part of the instant charges on fraud, on the ground that there is no evidence to deem that the account holder was aware that he/she would use the one’s own account for the crime of Bophishing, and the Majority Opinion also rejected the prosecutor’s grounds for appeal. However, the Majority recognizes a consignment relationship between the account holder and the remitter on the premise that the account holder was used for the crime of Bophishing. Accordingly, the Majority Opinion recognizes the consignment relationship between the account holder and the remitter and convicted the account holder on the premise that such relationship is established. Accordingly, the Majority Opinion results in inconsistency with the Majority Opinion on the basis of normative judgment of the consignment relationship that is inconsistent with the consignment relationship under the contract. However, it cannot be acknowledged that the other party, who is not the other party under the contract, is not aware of the actor.

Furthermore, the good faith principle should be applied to supplement the content of law or juristic act, and it is not right to recognize a different relationship by applying the good faith principle and to recognize a criminal offense on the premise thereof.

(3) The Majority Opinion recognizes the consignment relationship between the account holder and the remitter based on the legal doctrine of judicial precedents regarding erroneous remittance. However, since erroneous remittance concerns both the remitter and the account holder, it cannot be applied to the instant case where a consignment relationship exists between the account holder and the recipient of the means of access separate from the remitter.

In addition, the Majority Opinion states that the remitter has the right to claim the return of unjust enrichment against the account holder based on the Supreme Court Decision 2013Da207286 Decided that the remitter has the right to claim the return of unjust enrichment can also be applied to this case. However, the Supreme Court Decision on wrongful remittance is a case where the account holder was aware of the existence of the right to claim the return of unjust enrichment, obligation, or the cause thereof. Even if the remitter has the right to claim the return of unjust enrichment against the account holder, if the remitter withdraws the money without knowing that such right, obligation, or cause exists, the crime of embezzlement against the remitter cannot be acknowledged against the account holder. This case is immediately such case. Therefore, the Majority Opinion is unreasonable to deem that the legal doctrine on wrongful remittance can be equally applied to this case on the ground that the remitter holds the right to claim the return of unjust enrichment against

(4) The account holder is not guilty of a consignment relationship between the recipient of the means of access and the consignment relationship is not based on trust that can be protected under the Criminal Act. It cannot be deemed that there was a consignment relationship between the account holder and the remitter, and the actor had the intent to do so.

D. In the same purport, the lower court was justifiable to have rendered a not-guilty verdict on the embezzlement part among the facts charged in the instant case, and did not err by misapprehending the legal doctrine on the consignment relationship in the crime of embezzlement. Therefore, the Prosecutor’s appeal

For the foregoing reasons, I oppose the Majority Opinion.

7. Concurrence with the Majority by Justice Ko Young-han and Justice Kim Chang-suk

A. The gist of the Majority Opinion is that, even if the account holder wired and transferred money to his/her own account, the account holder is in the position of a custodian to preserve the said money if he/she could not receive the money, and thus, if withdrawn to obtain such money, the remitter’s crime of embezzlement is established. On the other hand, the consignment relationship between the defrauded and the account holder using a third party’s account to commit the crime of fraud cannot be protected, and therefore, the crime of embezzlement cannot be established.

B. The Concurring Opinion argues that no consignment relationship exists between the account holder and the victim of telecommunications-based financial fraud, and that if the telecommunications-based financial fraud crime is committed, the victim’s right to the wired money is lost. However, even if the victim committed fraud by remitting or transferring money to the account used in the third party’s name, so long as the money remains in the account, the victim does not lose his/her right to the money. The reasons are as follows.

(1) In fraud, “delivery of a thing” refers to the transfer of de facto control over the property to a criminal. Judicial precedents deem that there was a delivery of the property in a case where the property is in a situation where its free disposal is possible due to the de facto control of the criminal (see, e.g., Supreme Court en banc Decision 2001Do1825, May 16, 2003). Therefore, it does not mean that the crime of fraud was committed upon the delivery of the property, which means that the possibility of control based on the principal right, such as ownership, was infringed upon, and that the victim lost the principal right, such as ownership of the property, or that the fraud acquired the principal right, such as ownership of the property. Moreover, it does not mean that the victim does not have a disposal act as referred to in fraud, even if he/she is aware of the result of the disposal act (see Supreme Court en banc Decision 2016Do13362, Feb. 16, 2017). Ultimately, if property rights as referred to in the Criminal Act are violated, acquisition and loss of ownership can be determined by private law.

(2) Meanwhile, the type of telecommunications-based financial fraud includes not only the act of deceiving or threatening another person to transfer money by taking advantage of telecommunications to another person, but also the act of directly remitting or transferring money by identifying personal information (Article 2 Subparag. 2 of the Telecommunications Fraud Refund Act). In the latter case, there is no act of disposal by the victim. There are many cases where the victim directly transfers or transfers money to the account used for fraud without the intent of acquiring it from the offender. In this case, the victim did not have the intent to transfer money to the account of this case after confirming the criminal relationship. The victim, even in the instant case, the victim transferred money from the scaming employee to Defendant 1, who is a legal expert, of the money, to the account holder or the scambling employee. Therefore, the victim did not have any intent to revert the money to the account of this case.

C. The Concurring Opinion and the Dissenting Opinion asserts that, as in the instant case, the consignment relationship between the account holder and the defrauded who wired money is not recognized, given that the case where the account holder was involved in another person’s criminal act and wired money is different from the so-called “Error remittance case,” and thus, it cannot be recognized. However, such assertion is unreasonable on the following grounds.

(1) If the account holder receives money from the account in the name of the account holder without any cause, the account holder is obligated under the good faith principle that he/she should not withdraw the money with the intent to obtain it, knowing that there was no cause to receive the money. The existence of such obligation may not vary depending on what circumstances the remitter was, such as (i) whether the remitter was simply wired money, (ii) whether the remitter was in a transaction relationship with the account holder, (iii) whether the remitter was mistakenly wired money, and (iv) whether the money was sent by deception or intimidation of another person; and (ii) the fulfillment of such obligation is not possible only when the specific reason or circumstance of the remittance and transfer is known; provided, however, if the money was remitted or transferred by the crime, such as fraud in which the account holder participated, etc., the withdrawal or consumption of the money constitutes an act of fraud that has already been established, and thus, the account holder did not evaluate the nonperformance of the obligation separately.

(2) Furthermore, the consignment relationship between the account holder and the telecommunications-based financial fraud offender by transferring the means of access connected to the deposit account is not a consignment relationship worth protecting, and thus cannot be deemed a consignment relationship in the crime of embezzlement. Therefore, the consignment relationship between the defrauded and the account holder is not denied.

D. The Concurring Opinion argues to the effect that recognizing the crime of embezzlement against the defrauded is contrary to the principle of liability, even though the account holder did not have the awareness that the money voluntarily withdrawn by the account holder was wired or transferred due to the telecommunications-based financial fraud or that the money should be returned to the defrauded, not the defrauded who received the means of access to the account. However, such assertion is not reasonable.

In order for embezzlement to be established, the property which is the object of embezzlement must be “the ownership of another person” and the actor is sufficient to recognize such fact, and the identity of the owner does not necessarily have to be known. Thus, the establishment of embezzlement may not vary depending on who the actor recognized the owner of the property acquired. Furthermore, embezzlement is an offense in which the legal interest of the principal right, such as the ownership of the property, is protected (see Supreme Court Decision 2013Do658, Aug. 30, 2016). The essence of embezzlement is to illegally acquire another’s property entrusted (see Supreme Court Decision 2013Do658, Aug. 30, 2016). Accordingly, it does not affect the illegality or consequence of the act. In addition, in the instant case, the Defendants did not refuse to return the instant fraudulent damage with the intent of acquisition, but did not know who the other party was to return.

E. Meanwhile, the Dissenting Opinion argues that, insofar as a consignment relationship exists between the account holder and the recipient of the means of access to the account, the consignment relationship between the account holder and the remitter that contradicts the principle of good faith, etc. cannot be acknowledged on the ground of normative judgment.

However, given that the consignment relationship referred to in the crime of embezzlement is limited to those worth protecting under the Criminal Act, if the consignment relationship between the account holder and the defrauded who received the means of access connected to the account from the account for the commission of the fraud is not worth protecting in the crime of embezzlement, such consignment relationship cannot be deemed to exist from the perspective of the Criminal Act. Therefore, deeming that a consignment relationship exists between the account holder and the defrauded who wired money, is inconsistent with the consignment relationship between the account holder and the defrauded.

F. In short, the core of the instant case is whether an act of acquiring another person’s money deposited in one’s own account should be punished as embezzlement, and if so, whether to grant protection under the Criminal Act by deeming the criminal proceeds deposited in a third party’s account in the course of the commission of the fraud as the property of the fraud. If an entrusted relationship between the account holder and the fraud is recognized and deemed as an embezzlement of the property of the fraud, it would result in allowing and assisting a third party to commit the crime committed by using the account in the name of the third party. Such a result is unreasonable.

As above, I express my concurrence with the Majority Opinion.

Justices Ko Young-han (Presiding Justice)