(영문) 서울남부지방법원 2015.08.13 2015노677

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(영문) 서울남부지방법원 2015.08.13 2015노677

사기등

Text

All appeals filed by the defendant and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Prosecutor 1) misunderstanding of facts and misunderstanding of legal principles (not guilty part) Defendant’s cash card, etc. (hereinafter “the means of access in this case”).

Even if it is unclear whether the means of access was directly taken over from the nominal owner, it is not subject to punishment only where the nominal owner transfers or acquires the means of access from the nominal owner (see Supreme Court Decision 2013Do4004, Aug. 23, 2013). The fact that it is unclear whether the Defendant directly acquires the means of access from the nominal owner does not constitute a case where there is no proof of crime, and the Defendant should be evaluated as having received the ownership or the right to dispose of the means of access in this case finally. Nevertheless, the lower court acquitted the Defendant of this part of the charges. Nevertheless, the lower court erred by misapprehending the facts concerning the process of the acquisition of the means of access in this case and interpreting the elements of the acquisition of the means of access under the Electronic Financial Transactions Act, and thereby adversely affecting the conclusion of judgment. 2) The sentence (one year of imprisonment and confiscation) imposed by the lower

B. The above sentence imposed by the court below on the defendant (unfair punishment) is too unreasonable.

2. Determination

A. The lower court found the Defendant not guilty of this part of the facts charged on the ground that the evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant directly acquired the means of access in this case from the nominal owner, and even if the Defendant received the means of access directly from the nominal owner through Kwikset Service, etc., it is difficult to readily conclude that the Defendant had received the ownership or right to dispose of the means of access in this case.

The evidence duly adopted and examined by the court below and the reasoning of the court below.

참조조문

-전자금융거래법

참조판례

-대법원 2013. 8. 23. 선고 2013도4004 판결

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