The part of the judgment of the court of first instance and the judgment of the court of second instance concerning the defendant's case shall be reversed.

Defendant shall be punished by imprisonment for a period of five years and four months.

1. Summary of grounds for appeal;

A. Each punishment sentenced by the lower court (the first instance judgment: imprisonment with prison labor for 2 years and 4 months, and imprisonment with prison labor for 3 years) is too unreasonable.

B. Each of the above types sentenced by the court below by the prosecutor is too unhued and unfair.

2. We examine ex officio the grounds for appeal by the Defendant and the prosecutor prior to determining ex officio.

A. A. The defendant and the prosecutor filed an appeal against the judgment of the court below and the pleadings were combined in the trial. Since each crime in the judgment of the court below is concurrent crimes under the former part of Article 37 of the Criminal Act, one punishment should be imposed pursuant to Article 38(1) of the Criminal Act, the judgment of the court below that sentenced a separate punishment for each of the above crimes cannot be maintained in this regard.

B. When a criminal who committed telecommunications financing fraud (the so-called Bosing crime) in regard to the embezzlement part, deceivings the victim and transfers the victim’s funds to the account exploited for fraud, the crime of fraud reaches the maturity (see, e.g., Supreme Court Decision 2010Do6256, Dec. 9, 2010). The criminal occupies the victim’s funds.

In addition, it cannot be deemed that there was any consignment or fiduciary relationship with the victim, and the offender subsequently withdrawn cash from the account exploited for fraud.

Even if it is difficult to view such withdrawal as infringing new legal interests because it is nothing more than an act planned to commit a crime committed by fraud, it does not constitute a separate embezzlement against the victim of fraud.

This legal doctrine applies likewise to cases where a paper offender who aids and abets the fraud by transferring an access medium to his/her or another person’s account with the knowledge of the fact that he/she would be used in committing fraud voluntarily withdraws the victim’s funds that have been remitted to the account exploited for fraud (see Supreme Court Decision 2017Do3894, May 31, 2017). However, among the facts charged against the Defendant, embezzlement is applicable.