[1] The meaning of "the stolen property" in the crime of stolen property, and whether the property acquired after the crime of stolen property can be the stolen property (affirmative)

[2] The case holding that the withdrawn cash cannot be a stolen act in case where the cash was withdrawn from an automatic cash payment machine by using his own cash card after the deposit claim was acquired due to the crime of fraud by using computers, etc.

[3] In a case where cash and cashier's checks, which are stolen goods, were deposited in a financial institution and withdrawn in cash, whether the withdrawn cash is stolen (affirmative)

[4] The case holding that Eul's crime of acquiring stolen property is not committed in case where Gap transferred money from another person's bank account to another person's bank account without authority, and withdrawal of part of the money and delivered it to Eul

[1] Reference to a crime relating to stolen property in Chapter 41 of the Criminal Code refers to an article acquired by the crime of property itself. Thus, if there was an ex post facto act that constitutes the elements of a separate crime of property after the crime of property was committed, even though such act is not subject to punishment as an act of ex post facto act, it may be an article acquired by the ex post facto act and may be an article acquired by the crime of property.

[2] The case holding that in a case where a person who acquired a deposit claim through a crime of fraud by using computers, etc. and withdrawn cash from an automatic cash payment machine using his own cash card, it is used by the legitimate use by the person who used the cash card, which is against the will of the manager of the automatic cash payment machine, or because there was no act of deception or any other act of disposal, it does not constitute a element of larceny or fraud, and as a result, the withdrawn cash does not constitute property acquired by property crime, it cannot constitute stolen property

[3] Where cash or check, which is stolen, was kept in the form of a deposit in a financial institution and withdrawn the same amount of cash or check in order to receive the refund thereof, the cash or check withdrawn in the nature of the deposit contract is lost from the original cash or check, but there is no change in the monetary value indicated in the amount. Thus, the nature as stolen is maintained.

[4] The case holding that Eul's crime of acquiring stolen property is not established on the ground that Gap's transfer of money from another person's bank account without authority to another person's bank account and withdrawal of part of money and delivery of money to Eul is not property but property profit since Gap's deposit claim acquired by fraudulent use of computer, etc. is not property but property profit, even if he withdraws money from his bank account, it cannot be deemed that he deposited stolen property with the financial institution and withdrawn it.

[1] Article 362 of the Criminal Code / [2] Article 362 of the Criminal Code / [3] Article 362 of the Criminal Code / [4] Article 362 (1) of the Criminal Code

[3] Supreme Court Decision 98Do2579 delivered on March 10, 2000 (Gong2000Sang, 992) Supreme Court Decision 2002Do53 Delivered on April 12, 2002, Supreme Court Decision 2004Do134 Delivered on March 12, 2004 (Gong2004Sang, 675)

Defendant

Prosecutor

Seoul District Court Decision 2003No9781 Delivered on December 23, 2003

The appeal is dismissed.

We examine the grounds of appeal.

In the crime of stolen property in Chapter 41 of the Criminal Code, the term "relic" refers to an article acquired by the crime of property itself, so if there was an ex post facto act that constitutes the elements of a separate crime of property after the crime of property was committed, even though such act is not subject to punishment as an act of ex post facto act, the article acquired by such act can be an article acquired by the crime of property and can be an stolen article.

However, according to the records, the non-indicted, without authority, can be recognized that he committed the crime of fraud using a computer, etc. by entering information from the bank account of the above company into the Internet bank with a total of KRW 180,500,000,000 from the bank account of the above company and then using his own cash card to increase the amount of his deposit, and then withdrawing cash from the automatic payment machine. Thus, if he withdraws cash from the automatic payment machine using his own cash card, even if he withdraws the deposit claim acquired through the crime of fraud using a computer, etc., it is by a legitimate use by the person who has the right to use the cash card, and it is against the will of the automatic payment manager or did not have any act of deception or fraud. Accordingly, it does not constitute a separate element of larceny or fraud, and as a result, the withdrawn cash does not constitute property acquired through a property crime.

In addition, in a case where cash or check, which is stolen, was kept in the form of a deposit in a financial institution and withdrawn the same amount of cash or check in order to get the cash or check returned, the cash or check withdrawn in the nature of the deposit contract does not change any change in the monetary value indicated in the amount, although it was lost the original cash or the physical identity of the cash or check, as it is in the nature of the deposit contract. However, the nature as stolen is not maintained (see Supreme Court Decisions 98Do2269 delivered on September 17, 199, 98Do2579 delivered on March 10, 200, 202Do53 delivered on April 12, 200, etc.). Since the deposit claim acquired by the Nonindicted Party through the crime of using computer, etc. is not property but property profit, it cannot be deemed that it withdrawn the stolen goods from its own deposit account account and deposited them with the financial institution.

In the same purport, the judgment of the court below which affirmed the judgment of the court of first instance that acquitted the defendant on the ground that the defendant was not the stolen property, is just, and there is no error of law by misunderstanding the legal principles as to stolen property as otherwise alleged.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)