2018No550 Embezzlement 2010 Violation of Electronic Financial Transactions Act

A

Residence

Reference domicile

Prosecutor

old Jins (Courts) and Kim Jong-chul (Courts)

OOO as a legal entity

담당변호사 OCOO,□□□,△△△, ©©©

Gwangju District Court Decision 2017 Godan4293 Decided February 2, 2018

August 7, 2018

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

1. Summary of grounds for appeal;

A. Error of mistake

According to the evidence submitted by the prosecutor, it can be acknowledged that there is a consignment relationship between the defendant and the victim of the Bosing crime.

B. Unreasonable sentencing

The sentence of the lower court (six months of imprisonment, two years of suspended execution) is too unfluened and unreasonable.

2. Judgment on the assertion of mistake of facts

A. This part of the facts charged

On March 15, 2017, the number of the winners of the name cards was to increase the limit of the head of the ○○○ Bank Account. For this purpose, the victim, by deceiving ○○ Bank Account (**********-***********) to transfer KRW 29 million to the ○○ Bank Account in the name of the defendant. On March 16, 2017, the defendant confirmed that the amount of KRW 17 million out of the amount remitted to the victim through the ○ Bank Account Balance of the above ○ Bank Account on March 17, 2017 remains, and then made withdrawal of KRW 6 million from the above ○ Bank Account by using the ○○ Bank Account re-issued at the ○○ Bank's point of ○○ Bank on March 17, 2017, and then made withdrawal of KRW 900,000 from ○ Bank** 960,000***10,000).

B. The judgment of the court below

On March 15, 2017, the injured party remitted KRW 29 million to the Defendant’s account by deceiving the “Singing of a person without a name,” and the accused may recognize the fact that the words were deposited in the Defendant’s account for illegal purposes or in a manner, despite being aware of the fact that the money was deposited in the Defendant’s account, the Defendant left the Defendant’s account. In such a case, there is no room to deem that a trust relationship exists between the injured party and the Defendant, and thus, the Defendant does not constitute a person who keeps the victim’s trust worth KRW 16.99 million. Accordingly, the Defendant acquitted the Defendant on this part of the facts charged (Embezzlement).

C. Judgment of the court below

1) In cases where the remitter remitted or transfers funds to another person’s deposit account, barring any special circumstance, the account holder and the receiving bank established a deposit contract between the remitter and the account holder, irrespective of whether there exists a legal relationship causing such remittance or transfer, and the account holder shall obtain the deposit claim corresponding to the amount from the receiving bank. In such cases, even if there is no legal relationship causing the remittance or transfer between the remitter and the account holder, if the account holder acquires the deposit claim equivalent to the amount by means of remittance or transfer, the account holder shall return the money equivalent to the amount to the remitter (see, e.g., Supreme Court Decision 2007Da51239, Nov. 29, 2007). As such, even if the account holder did not have a legal relationship causing the remittance or transfer, the account holder is deemed to have the nature of returning considerable amount of the deposit claim acquired by account transfer to the remitter, and thus, the account holder ought to be deemed to have been held in the position of the remitter for the remittance and transfer.

This legal doctrine likewise applies to cases where the deposit account opened by the account holder is used in the crime of telecommunications-based financial fraud and the victim wired or transferred the amount of fraudulent damage to the account. Since the account holder return the money equivalent to the amount of fraudulent damage remitted and transferred to the victim without any legal relationship with the victim (see Supreme Court en banc Decision 2013Da207286, Oct. 15, 2014). As such, the account holder is deemed to have the status of keeping the amount of fraudulent damage for the victim. If the account holder withdraws the money with the intent of the account holder to obtain the money, the crime of embezzlement against the victim is established (see Supreme Court en banc Decision 2017Do17494, Jul. 19, 2018).

2) The following facts can be acknowledged by the evidence duly adopted and examined at the court below: ① the victim B was sent KRW 29,00,00 to the ○○ Bank account (**********-***********) in the name of the defendant after hearing the horses as stated in the facts charged from the employee of the ○ Bank in the judgment below; ② the defendant withdrawn KRW 6,00,000 from the above ○ Bank account (**********************) in the above ○ Bank account and then remitted KRW 10,99,00 from the above ○ Bank account (*********-**********) in the same day, and the defendant's assertion that the defendant could withdraw the money from the defendant's intent to retain the victim is reasonable to recognize the fact that the defendant could have withdrawn the money for the victim.

3. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the prosecutor's argument of unfair sentencing, and the following is again decided after oral argument.

【Discretionary Judgment】

Criminal facts

1. Violation of the Electronic Financial Transactions Act;

The criminal facts of this part recognized by this Court are identical to the corresponding column of the judgment of the court below (No. 17 to No. 3). Thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

2. A. As set out in paragraph (1).

Summary of Evidence

The summary of the evidence of the above crime is the same as the corresponding column of the judgment of the court below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 49(4)1 and 6(3)1 of the Electronic Financial Transactions Act (the transfer of access media), Article 355(1) of the Criminal Act (the point of embezzlement) of the same Act, the selection of imprisonment for each sentence of imprisonment

1. Aggravation of concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

Reasons for sentencing

The defendant is the first offender (Provided, That there is a record of juvenile protective disposition once), the amount of embezzlement damage is returned to the victim, and the agreement is reached.

However, the act of transferring a means of access without permission is disadvantageous to the following: (a) the safety and reliability of electronic financial transactions are prejudicial to the safety and reliability of electronic financial transactions; (b) there is a high risk of causing secondary damage to the crime; (c) the Defendant transferred two means of access to money; (d) the Defendant’s account was used for the crime of Bosing; and (e) the Defendant arbitrarily released money transferred from the victim of the crime of Bosing to the principal’s account and caused additional damage.

In addition, the punishment as ordered shall be determined in consideration of the defendant's age, character and conduct, environment, motive, means and result of the crime, circumstances after the crime was committed, etc.

Long containers (Presiding Judge)

Secretary-Support

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