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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal by the defendant and his defense counsel
A. In the event that it is impossible to preserve the claim for damages due to the legal procedure, such as provisional attachment after the Defendant obtained 1.4 billion won from E and F, the application for remedy for damage caused by a false telecommunications company’s financial company’s own account (hereinafter “instant account”) with the representative E who is presumed to have been transferred the amount of damage in the situation where it is difficult to preserve the claim for damages due to the legal procedure, such as provisional attachment, constitutes the act of self-help, and thus, the illegality is dismissed.
Nevertheless, the lower court convicted the Defendant of the facts charged of the instant case, thereby adversely affecting the conclusion of the judgment.
B. In light of the fact that the criminal defendant was not punished for the same crime, the sentence of a fine of KRW 2,500,000 is too unreasonable.
2. Determination
A. The act of self-help under Article 23 of the Criminal Act, which judged the misapprehension of the legal principle
“If it is impossible to preserve a claim by legal procedure, it refers to an act that is reasonable to avoid the impossibility or significant difficulties of its execution (see Supreme Court Decision 84Do2582, 84 decided Dec. 26, 1984). In this case, the defendant was engaged in monetary transactions in his office.
E was subject to fraud due to the failure to receive the principal amount of KRW 1.4 billion and interest from E;
The circumstance alone does not necessarily mean that the defendant is unable to preserve his/her right to claim E by legal procedure, and even if the defendant was guilty of his/her fraud from E.
Even if it was possible to report the truth to an investigation agency and take measures accordingly, the instant account is known that not only the instant account but also all the accounts connected to E, etc. are suspended for the purpose of preventing the withdrawal of banks, such as E, etc., and the instant account is sent to the Korea Bank Call Center.