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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. The lower court’s punishment (the amount of KRW 5 million) against the Defendant (unfair sentencing) is too unreasonable.
B. Prosecutor 1) misunderstanding the legal principles, regardless of the crime of telecommunications financing fraud, the Defendant merely committed a crime of violating the Electronic Financial Transactions Act, and it is difficult to view that the Defendant’s embezzlement is absorption into the crime of telecommunications financing fraud. Therefore, the Defendant is in the position of custodian under the good faith principle between the victim and the victim.
Nevertheless, the court below rendered not guilty of embezzlement against the defendant. Thus, the court below erred by misapprehending the legal principles on embezzlement, which affected the conclusion of the judgment.
2) The lower court’s sentence (one million won in 5 million won in penalty) against an unfair defendant in sentencing is too unhued and unreasonable.
2. Determination of the Prosecutor’s misunderstanding of the legal principles
A. From among the facts charged in the instant case, the Defendant embezzled 6 million won, which was transferred to the bank account in the name of the Defendant in the name of the victim C, by falling under the phishing crime on December 1, 2016, on the following grounds: (a) he voluntarily withdrawn KRW 5 million and transferred it to the bank account in the name of the Defendant; and (b) embezzled it for personal purposes, such as living expenses, after transferring it to the bank account in the name of the Defendant.
B. If a criminal of telecommunications financing fraud has received money from the victim by deceiving the victim and has received money from the victim to the account using the fraud, the act of defraudation leads to the acceptance of the money.
Therefore, the criminal possessed the money of the victim.
Even if this does not lead to any entrustment or trust relationship between the victim and the victim, there is a status to keep the victim's money.
In addition, the offender withdrawn cash from the account exploited for fraud thereafter.
It is difficult to say that this is nothing more than the act of the act of the crime of fraud that has been already established, and it is also an infringement of new legal interests.