Defendant

Defendant

T. T. H. H. H. H.

Gwangju District Court Decision 2005Da520, 603 (Consolidation), 1464 (Consolidated), 1684 (Consolidated) Decided July 28, 2005

The judgment of the court below is reversed.

A person shall be punished by imprisonment with prison labor for each of the crimes listed in subparagraphs 1 through 7 of the holding of the defendant and one year for each of the crimes listed in Articles 8 through 13 of the holding of the defendant.

The number of detention days prior to the pronouncement of the original judgment shall be included in the above sentence for each crime under Articles 8 through 13 as of 156 days.

excessive one sheet (No. 180, No. 180, No. 6) seized shall be confiscated.

Two vehicle number plates (No. 180, No. 2005, No. 180, No. 3) that have been seized shall be returned to the victim Kim-il.

Of the facts charged in the instant case, the charge of larceny against the victim 2 and 3 on April 11, 2002 is acquitted.

1. Summary of grounds for appeal;

The punishment sentenced by the court below against the defendant (ten months of imprisonment, one year of imprisonment) is too unreasonable.

2. Ex officio determination

A. Determination as to the theft against the victim 2 and the bood water

(1) Of the facts charged in the instant case, the summary of the facts charged regarding the theft of the victim 2 and 3 was stolen by the Defendant, on April 11, 2002, by taking out the debit cards of the Industrial Bank of Korea owned by the victim 3, which are located within the Handbags of the victim, in the coffee shop located in the Gwangju Mine-gu, Gwangju, the victim 2, at the same time, using the flus of the flus of the flusium, and by taking out the debit cards of the victim 3.

(2) In a case where the property of another person is used without the consent of the possessor without permission, if the property itself is consumed or used to the extent that the economic value of the property itself is considerable, or if the property is disposed of in a place other than its original place, or it is occupied for a long time without the return, the intention of unlawful acquisition may be recognized by deeming that the property is intended to infringe on its ownership or principal right. However, in a case where the consumption of the value due to the use is minor to the extent that the value due to the use may be disregarded and the return is the same as the return immediately after the use, the intention of unlawful acquisition cannot be deemed to infringe on its ownership or principal right (see Supreme Court Decision 9Do857 delivered on July 9, 199).

However, according to the records, even if the defendant transferred money to his bank account on April 11, 2002 by using the above debit card, he cannot be deemed to have reduced the economic value of the debit card itself, and even if the defendant transferred money to his bank account by using the above debit card on April 11, 2002, he cannot be deemed to have the intent to obtain illegal use of the debit card as long as he returned it by using the above debit card, and then transferred 17 million won to his own Gwangju bank account at the branch of Gwangju Bank's mine by using the above debit card as criminal facts 6. The court below found the defendant guilty of this part of the charges by misunderstanding the legal principles as to the crime under Article 25 of the Criminal Procedure Act or 35 of the facts charged.

(b) Amendments to Bill of Indictment;

For the first time, the prosecutor applied for the modification of the indictment to change part of the fraud by using computers, etc., theft and theft as follows, and the object of the trial was changed by the party members' permission. Therefore, the judgment of the court below cannot be maintained even in this respect.

3. Conclusion

Therefore, the judgment of the court below shall be reversed ex officio pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and the judgment shall be rendered again after pleading as follows.

Of the facts charged by the lower judgment, “paragraph 5” is deleted, and “Paragraph 6, 8, 9, 10, 11, 12, 13, and 14” is changed in sequence to “Article 5, 7, 8, 9, 10, 11, 12, and 13,” and the facts constituting the crime of the lower judgment is changed to that of “Article 5, 7, 8, 8, 9

“6. On December 23, 2002, on the basis of the fact that around December 23, 2002, the defendant was aware of the victim’s identity card number, which was already known in the Nam-gu (defluence omitted), Nam-gu (defluence of the trade name), the defendant could not have used the credit card in laundry with laundry because the defendant was able to do so as if he was the holder of the above card, and the credit card could not be used in the laundry. Accordingly, on the 31st day of the same month from the above company, he was issued a new national card by driving the card as if he was the victim at the above lab.

(a) on December 31, 2002, Gwangju Bank Woo-ro, Gwangju District, by inserting a cash withdrawal machine of 3.2 million won in cash by inserting four national cards with four victims’ cash withdrawal at the loyalty point in Gwangju-gu, Gwangju-gu, Gwangju-gu, Gwangju-gu, Gwangju-si, and then by withdrawing deposits equivalent to KRW 10.2 million in total or receiving cash services at least eight times until January 5, 2003, as shown in the list of crimes in the separate sheet;

B. On January 2, 2003, after accessing the said national card company by means of Ess (ARS) telephone at the remote location of Gwangju metropolitan location, then applying for a loan of ARS card loan from the said company to the bank account with the victim 4, and then withdrawing the amount of five million won over three occasions at that time, thereby acquiring pecuniary benefits equivalent to that amount;

C. On January 7, 2003, in the modern department store located in Gwangju Northern-dong, the purchase of one unit of 8,800,000,000 won without intention or ability to pay the price, even if the purchase of the goods by using the victim’s national card in the name of the injured party is made, and shall be acquired through fraud;

Of the summary of the evidence of the judgment below, “Non-Indicted 1’s written self-statement” is corrected as “a certified copy of Non-Indicted 1’s written self-statement,” and as stated in each corresponding column of the judgment of the court below in addition to adding “the arrest report of the suspect.”

1. Article applicable to criminal facts;

Article 347(1) of the Criminal Act (each fraud), Article 329 of the Criminal Act, Article 355(1) of the Criminal Act, Article 238(1) and (2) of the Criminal Act, Article 238(1) and (2) of the Criminal Act, Article 145 of the Criminal Act, Article 70(1)3 of the Specialized Credit Financial Business Act, Article 347-2 of the Criminal Act (the point of fraud by computer, etc.), Article 347-2 (the point of fraud by computer, etc.), Article 35(1) of the Criminal Act, Article 238(1) and (2) of the Criminal Act,

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act (it is between the crimes of subparagraphs 1 through 7 at the time of display and the crime of occupational embezzlement of first head at the time of original adjudication)

1. Aggravation of concurrent crimes;

Article 37 (Mutual Crimes of Articles 38 (1) 2 and 50 (Mutual Crimes of Articles 1 through 7 at the Time of Sales, and Mutual Crimes of Articles 8 through 13) of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Return of victims;

Article 333(1) of the Criminal Procedure Act

Of the facts charged in the instant case, the summary of the facts charged regarding the theft of the victim 2 and 3 on April 11, 2002 is as stated in Paragraph 2-A-1, and on the same ground as stated in Paragraph 2-A-2-2, the facts charged constitute a time when there is no proof of facts constituting a crime, and thus, a not guilty is pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Kim Jong-ok (Presiding Judge) Lee Woo