2017 Embezzlement4293, Violation of the Electronic Financial Transactions Act

A

The Gu Jinsi (Court of Prosecution) and the Suspension (Court of Public Trial)

Law Firm B, Attorney C

February 2, 2018

A defendant shall be punished by imprisonment with prison labor for up to six months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.The charge of embezzlement among the facts charged in this case shall be acquitted.

Criminal facts

On March 15, 2017, at around 23:00, the Defendant: (a) transferred the means of access to the name-free person, each of the physical cards linked to the Defendant’s name bank account (number D) and the Gwangju Bank account (number E) to the name-free person that “to give KRW 1,000,000 per share of the account to be used for managing money at the soil site in front of the Gwangju High School located in the Gwangju Northern High School.”

Summary of Evidence

1. Defendant's legal statement;

1. Statement of the suspect interrogation protocol of the accused by the prosecution;

1. Statement made by the police officer on F;

1. Entry of a remittance statement, details of each account transaction, and details of issuance cards, respectively;

Application of Statutes

1. Article applicable to criminal facts;

Articles 49(4)1 and 6(3)1 of the Electronic Financial Transactions Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Imprisonment Selection

1. Suspension of execution;

The act of arbitrarily transferring the means of access for sentencing under Article 62(1) of the Criminal Act is highly likely to undermine the safety and reliability of electronic financial transactions and cause secondary damage by using them in crimes. The Defendant transferred two means of access for the purpose of money in expectation of the use of one’s own means of access to abnormal transactions, and in fact the Defendant’s account was used for the “Singing” crime: Provided, That the Defendant was no previous criminal record. In addition, the sentencing conditions indicated in the records, such as the Defendant’s age, occupation, family relationship, and circumstances before and after crimes, etc., shall be determined as the same as the order.

The acquittal portion

1. Summary of this part of the facts charged

Around March 15, 2017, the number of winners of name cards would increase the limit of a Maspbook to the victim F. In order to do so, by deceiving the victim to return to the account that he/she received and notified the loan, and allowing the victim to transfer KRW 29 million to the national bank account (D) in the name of the defendant. On March 16, 2017, the defendant confirmed on March 16, 2017 that the amount remitted by the victim through the FF Account Balance Adjustment meeting of the above national bank account remains, and then withdrawn KRW 6 million from the above national bank account on March 17, 2017, using the Masp Card re-issueded at the Japanese branch of the FF Bank, and then embezzled KRW 10,990,000 from the Gwangju bank account to the FF account (E) on the same day, the defendant voluntarily released KRW 196,90,000,000,000 from the Gwangju Financial Center.

Judgment

A. Inasmuch as custody in the crime of embezzlement refers to possessing property based on the consignment relationship, the crime of embezzlement is to be established, there should be legal or de facto consignment relationship between the custodian, owner, or other principal right holder of the property. New trust relationship is a loan for use, lease, delegation, etc.

Of course, a contract may be accepted by administrative management, customs, cooking, and trust rules, etc.

B. According to the records, the victim transferred KRW 29 million to the Defendant’s account in March 15, 2017, to the Defendant’s account by deceiving “Sphishing,” and the Defendant may recognize the fact that, after this framework, the Defendant withdraws KRW 16.99 million remaining in the Defendant’s account even though he knows that money was deposited to the Defendant’s account for illegal purposes or in a manner. In such a case, there is no room to deem that a consignment relationship exists between the victim and the Defendant, and the Defendant does not constitute a custodian of KRW 16.99 million.

3. Conclusion

This part of the facts charged constitutes a case where there is no proof of a crime, and thus, a judgment of innocence is rendered based on the latter part of Article 325 of the Criminal Procedure Act, and the defendant does not have the right to disclose the judgment of innocence under the proviso of Article 58 (

Judges Kang Jong-chul