[1] The liability for the crime of larceny in a case where a credit card issued with a false representation in another person's name withdraws cash from an automatic machine (=the theft)

[2] Whether the act of withdrawing cash from an automatic machine with a credit card issued with a false representation in the name of another person can be punished as a fraud by using computers, etc. under Article 347-2 of the Criminal Code (negative)

[3] The inclusion of days of pre-trial detention in the appellate court and the court's discretion

[4] Whether it is necessary to state the facts constituting an offense, summary of evidence, and applicable statutes in the reasoning of the judgment of the appellate court except where the judgment of the court of first instance reversed and rendered a judgment of conviction (negative)

[5] The requirements for the court to find facts different from the facts charged without going through the modification of indictment, and the correction of obvious clerical errors and the modification of indictment (negative)

[6] The probative value of the protocol of trial

[1] In a case where the defendant was issued a credit card by using another person's name, even though the credit card company issued a credit card in the name of the person under whose name the defendant was accused by the defendant, and in fact allowed the defendant to obtain a cash loan (cash service) by inputting the identification number designated by the defendant, the act of receiving a cash loan from an automatic payment machine using a credit card issued in the name of another person is not a comprehensive permission by the credit card company in advance, but a transfer of the credit card under its control by excluding the control against the will of the manager of the automatic payment machine, and it is reasonable to deem that the act of receiving a cash loan from an automatic payment machine by using the credit card issued in the name of another person is a crime of larceny.

[2] Since the objects of the crime of fraud by the use of computer, etc. under Article 347-2 of the Criminal Code are limited to the interests of property, not property, the act of withdrawing cash from the automatic payment machine with a credit card issued in the name of another person cannot be punished by applying the provisions of this Act.

[3] Where only the defendant appeals against the conviction of the first instance court and reverses the first instance judgment, it is not allowed to reduce part of the detention days prior to the pronouncement of the first instance judgment, which is included in the principal sentence, in principle, in the principle of prohibition of disadvantageous alteration, from the appellate court. However, if the appeal by only the defendant is dismissed, whether the whole detention days prior to the appellate court should be included in the principal sentence or only part of the detention days prior to the appellate court's discretion

[4] In the interpretation of Article 369 of the Criminal Procedure Act, it is sufficient that the appellate court's judgment is sufficient to state the judgment on the grounds for appeal, and it is not necessary to state the gist of facts constituting an offense or evidence, and the application of the relevant statutes separately in the grounds for appeal, except in the case of reversal

[5] If there is no concern about substantial disadvantage to the defendant's exercise of the defendant's right of defense, it does not contravene the principle of no accusation to recognize facts different from the facts charged without going through changes in indictment to the extent identical to the facts charged or by the evidence obvious that it is a clerical error.

[6] Except where there is an obvious clerical error in the contents of the protocol, the legal proceedings at the court date which are written in the protocol are proved only by the protocol, and its probative value is absolute that no counter-proof is allowed by data other than the protocol.

[1] Article 329 of the Criminal Act / [2] Article 347-2 of the Criminal Act / [3] Article 57 of the Criminal Act, Article 482 of the Criminal Procedure Act / [4] Article 369 of the Criminal Procedure Act / [5] Articles 254 and 298 of the Criminal Procedure Act / [6]

[1] Supreme Court Decision 95Do9798 delivered on July 28, 1995 (Gong195Ha, 3034 delivered on April 9, 196), Supreme Court Decision 95Do246 delivered on April 9, 196 (Gong196), Supreme Court Decision 83Do1470 delivered on July 26, 198 (Gong1989 delivered on July 29, 197), Supreme Court Decision 83Do2528 delivered on November 29, 197 (Gong1984 delivered on June 9, 198), Supreme Court Decision 209Do979 delivered on June 29, 2005 (Gong1984 delivered on September 29, 205)

Defendant

Defendant

Attorney Kim Jong-soo (National Ship)

Seoul District Court Decision 2002No972 delivered on April 19, 2002

The appeal is dismissed. 70 days out of detention days after the appeal shall be included in the original sentence.

The defendant and his defense counsel's grounds of appeal are also examined.

1. On the first ground for appeal

In light of the records, the judgment of the court of first instance which affirmed the judgment of the court of first instance which found the defendant guilty of each criminal facts in the judgment of the court of first instance is just, and there is no violation of the rules of evidence and there is no violation

The grounds of appeal disputing this issue are rejected.

2. On the second ground for appeal

Where the defendant was issued a credit card by using another person's name in his/her own name, even though the credit card company issued a credit card under the name of the person under whose name the defendant was accused of the defendant, and in fact allowed the defendant to obtain a cash loan (cash service) by inputting the password designated by the defendant, it is sufficient to view that the act of receiving a cash loan from an automatic payment machine using a credit card issued under another person's name is not an act of comprehensively permitted in advance by the credit card company but an act of transferring the cash under his/her own control by excluding control against the will of the manager of the automatic payment machine (see, e.g., Supreme Court Decision 95Do2466, Apr. 9, 196).

On the other hand, since the object of the crime of fraud by using computers, etc. as provided in Article 347-2 of the Criminal Act is limited to property interests, not property, the act of withdrawing cash from the automatic payment machine with a credit card issued with a false representation in the name of another person cannot be punished by applying the provisions of this Act.

Therefore, the court below's decision is justified in taking the five-Ra, tea, and other part of the facts charged as a measure of larceny or special larceny, and there is no illegality in law application.

The ground of appeal disputing this issue is rejected.

3. On the third ground for appeal

Where only the defendant appeals against a conviction of the court of first instance and reverses the judgment of the court of first instance, it is not allowed to reduce part of the detention days prior to the pronouncement of the judgment of the court of first instance, which is included in the principal sentence, under the principle prohibiting disadvantageous alteration, from the appellate court. However, in a case where the appeal of only the defendant is dismissed, whether the whole detention days during the appellate court should be included in the principal sentence or only part of the detention days should be included in the original sentence belongs to the discretion of the appellate court (see Supreme Court Decisions 83Do1470, Jul. 26, 1983; 95Do2500, Jan. 23, 1996, etc.).

Therefore, it cannot be deemed unlawful on the ground that the court below included only 70 days, which is a part of the detention days in the appellate court, in the original sentence.

The ground of appeal disputing this issue is rejected.

4. On the fourth ground for appeal

In the interpretation of Article 369 of the Criminal Procedure Act, the appellate court judgment is sufficient to state the judgment on the grounds for appeal, and it is not necessary to state the summary of facts constituting an offense or evidence and the application of the relevant Acts and subordinate statutes separately in the grounds for appeal except where the appellate court reverses the judgment of the first instance and renders a judgment of conviction (see Supreme Court Decision 82Do2642, 82Do557, Dec. 28, 1982).

Therefore, the decision of the court below that dismissed the appeal on the ground that there is no ground for appeal by the defendant is just, and there is no error of law in this regard.

The ground of appeal disputing this issue is rejected.

5. On the fifth ground for appeal

If there is no concern about substantial disadvantage to the defendant's exercise of the defendant's right of defense, it does not violate the principle of no accusation that the court recognizes facts different from the facts charged without going through changes in indictment to the extent identical to the facts charged, or that it is found by evidence that it is obvious that it is a clerical error is obvious (see Supreme Court Decision 2001Do970 delivered on March 15, 200

According to the records, in light of the date and place of the crime, and the property acquired by deception, etc., the "(s) department store card" in the name of the 6.b. (1) and (2) of the facts charged of this case is clear that it is a clerical error in the (s) department store card in the name of the kniven court, even if compared to the facts charged 6.a. of the facts charged, it is obvious that the court below corrected the 'b. stocks' to the 'b.' department store card in the name of the kniven court as the 's "b.' department store card in the name of the kniven court

The ground of appeal disputing this issue is rejected.

6. On the sixth ground for appeal

Except in cases where there is an obvious clerical error in which the protocol of trial is written, it shall be proved only by the protocol, and its probative value is absolute in which materials other than the protocol of trial are not allowed to be counter-proof (see Supreme Court Decision 96Do173 delivered on April 9, 196).

According to the records, the presiding judge notified the defendant that he/she has the right to refuse to make statements on the first trial date of the court below, the final argument by the defense counsel and the defendant's last statement on the third trial date of the court below was closed, and the presiding judge declared the judgment on the fourth trial date, and notified the appeal period, the appellate brief submission court and the appellate court, and there is no evidence that the statement is obviously a clerical error.

Therefore, the grounds of appeal disputing the contents of the protocol of trial cannot be accepted.

7. Conclusion

Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)