Where another person withdraws his/her deposit without permission by using his/her deposit passbook and immediately returns his/her deposit passbook, whether larceny against his/her deposit passbook is constituted (affirmative with qualification)

The deposit passbook does not mean securities that commend the deposit deposit deposit account, but does not form the economic value equivalent to the deposit amount itself. However, it is not only the fact of the deposit contract, but also the function of certifying the deposit amount as well as the function of certifying the deposit amount as an economic value. As such, if the deposit is withdrawn by using the deposit passbook, the function of proving the deposit amount itself is lost as to the withdrawn deposit amount, and the economic value corresponding to the lost function is consumed. Thus, even if the deposit was withdrawn by using the other person’s deposit passbook without permission and immediately returned the deposit passbook without permission, as long as the use of the deposit passbook is not insignificant enough to disregard the consumption of the above economic value, it can be recognized as illegal acquisition of the economic value of the deposit amount itself. Thus, larceny is established.

Article 329 of the Criminal Act

Defendant

Prosecutor

Chuncheon District Court Decision 2009No123 decided August 14, 2009

The judgment of the court below is reversed, and the case is remanded to the Gangnam Branch Branch Court Panel Division.

We examine the grounds of appeal.

1. Of the facts charged in this case, the court below found that the defendant was guilty of this part of the facts charged on the ground that the defendant's act could not be deemed to have been used as much as the amount of the deposited money, and that the economic value of the passbook itself cannot be deemed to have been consumed as the withdrawn amount of the deposited money, and as long as the defendant used the passbook as above and returned it immediately to the defendant, the defendant did not have an intention to obtain unlawful acquisition of the passbook in this case, since he had opened the passbook in the name of the victim (hereinafter "the passbook in this case") on December 11, 2007.

2. However, we cannot agree with the judgment of the court below for the following reasons.

In cases where another person’s property is used without the consent of the possessor, if the property itself was consumed to a considerable degree of economic value due to such use, or the property was disposed of in a place other than its original place, or it was occupied for a long time without the return, the intent of unlawful acquisition may be recognized by deeming that the person intended to infringe on the ownership or equivalent right (see, e.g., Supreme Court Decisions 87Do1959, Dec. 8, 1987; 92Do18, Apr. 24, 1992).

On the other hand, the deposit passbook is not a securities representing the deposit deposit deposit account, but it does not form an economic value equivalent to the deposit amount. However, it is not only the fact of the deposit contract as a qualified security to prove the eligibility for the exercise of the deposit deposit deposit account by holding it, but also there is a function to prove the deposit amount and the function of proof is deemed to be the economic value of the deposit itself. As such, if the deposit is withdrawn by using the deposit passbook, the function to prove the deposit amount itself is lost and the economic value corresponding to the lost function is consumed. Thus, even if the deposit was withdrawn by using the other person's deposit passbook without permission and immediately returned the deposit account without permission, it is not so minor that the consumption of the above economic value can be disregarded due to the use of the deposit passbook. Thus, larceny is established as long as the intent to illegally obtain the economic value of the deposit amount itself can be recognized.

In light of these legal principles, the economic value of the certification function of the deposit amount per se of the passbook of this case can be deemed to have been spent to a considerable extent by the Defendant without permission by using the passbook of this case and withdrawing the deposit amount of KRW 10 million. Thus, even if the Defendant immediately left the passbook of this case after its use, the intent of unlawful acquisition of the consumed value is recognized. Moreover, it cannot be viewed that the Defendant used the passbook of this case without permission on the ground that the Defendant might not be properly paid monthly pay from the victim.

Nevertheless, the lower court denied the intent of unlawful acquisition and acquitted the Defendant of this part of the facts charged. In so doing, it erred by misapprehending the legal doctrine on intent of unlawful acquisition, thereby affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, the part of the judgment of not guilty among the judgment below should be reversed. This part of the judgment of the court below should be sentenced to a single punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act with the part which the court below found guilty.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)