Whether cash acquired by fraud and cash cashier's checks are stolen after being consumed by banks (negative)

The cash acquired by means of fraud after consuming part of the cashier’s checks and cash, which was acquired by again withdrawing from the bank, should be deemed as having already lost the stolen nature. Unlike the case where cash is exchanged for other kinds of money, or where the cashier’s checks, which are stolen goods, are exchanged for cash, it should be deemed as having already been acquired as the stolen property

Article 362 of the Criminal Act

Defendant 1 and one other

Ministry of Gender Equality

Attorneys Song Ho-ho et al.

Seoul District Court Decision 96Da185 delivered on December 20, 1996, Seoul District Court Decision 95Da3479 delivered on April 23, 1996, and 96 Godan88 delivered on April 23, 1996

All the judgment below is reversed.

Defendant 1 shall be punished by a fine of KRW 3,000,000.

When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 20,000 won into one day.

One hundred and twenty days of detention days before the judgment of the court below is rendered shall be included in the period of detention in the workhouse.

Of the facts charged in the instant case against Defendant 1, the acquisition of stolens and Defendant 2 are acquitted, respectively.

1. Summary of grounds for appeal;

A. Defendant 1

(1) As to the acquisition of stolen property (the defendant)

The stolen goods embezzled by Co-Defendant 3 of the court below are bills, and the act of receiving cashier's checks, etc. at discount is an act ex post facto act, and it is not stolen, and even if the act of discounting the bill is not a stolen, the act of the above defendant is not a crime of acquiring stolen goods since the cash, which was deposited in the bank and withdrawn after the above act of discounting the bill, has already lost stolen property. Thus, even though the above cash is a stolen goods, the above defendant was aware of the embezzlement of the bill by Co-Defendant 3 of the court below, and even though the above cash was a stolen goods, the above defendant was aware of the embezzlement of the bill by Co-Defendant 3 of the court below, and there was no awareness of the fact that the cash was a stolen goods. Accordingly, the court below that the above defendant was the crime of acquiring stolen goods, and there was no misconception of the fact that the cash was a stolen goods.

(2) As to the charge of forging private documents, the crime of uttering, and fraud (Defense Counsel)

First, although the above defendant voluntarily withdrawn the money for the asset-building savings of this case with the consent of Kim Jong-sik who is the victim, the court below found that the above defendant voluntarily withdrawn the money for the asset-building savings without the consent of the victim. Second, the court below erred in misunderstanding of facts, and second, even if the above defendant was guilty, the court below's sentencing is too unreasonable in light of the circumstances where the above defendant withdrawn the money for the asset-building

B. Defendant 2 (Defense Counsel)

First, after being detained on April 22, 1996, the above defendant knew that the money held by Co-defendant 3 of the court below was an stolen stolen money, and prior to that, prior to that, he knew that Co-defendant 3 of the court below was a stolen money that he embezzled public funds, and thus, he did not have awareness of the property nature, the court below, which held the above defendant as stolen property acquisition and stolen property storage, was erroneous in the misconception of facts, and second, even if the defendant's act was found guilty, the court below's sentencing is too unreasonable in light of the circumstances leading to the crime of this case.

2. Determination

A. The crime of acquiring stolens against Defendant 1 and Defendant 2

(1) Summary of the facts charged

Co-defendant 3 of the court below is a person who works for the victim, corporation located in Gangseo-gu Seoul Metropolitan Government from December 1, 1986 to March 10, 196, and was engaged in the sales and collection of goods of the above company, and the director of the division of the three team is engaged in the sales and collection of goods of the above company, and around February 28, 1996, the face value of promissorysory notes of KRW 126,618,646 won shall be 1,4,907,694 won, 1,407,694 won, 1,2,461, 228 won, 272, 29, 715, 532 won, 272,122, 159, 207, 2701, 2504, 308, 154, 250, 198, 254, 106, 254, 15.

① Around March 5 of the same year, at the office of the So-dong, Jung-gu, Seoul, Seoul, the said amount is held with the intent of acquiring the said amount from the office of co-defendant 3 of the court below on the same day, by means of: (a) having the said amount deposited KRW 791,480,000 for the said company at a discount of eight copies of the said bill at the office of the Hannam-dong, Jung-gu, Seoul, for the said company; (b) having Defendant 2 keep the said amount in custody of KRW 95,00,000, out of the said amount; or (c) embezzlement the entire amount of the said discounted amount on the 14th of the same month;

(2) In the course of the business custody of the above eight bills for the above company, around March 5 of the same year, at the above modern commercial office around the above modern commercial office around March 5 of the same year, it embezzled the above eight bills at a discount in cash with the intention of acquiring them, and then, at that time, Co-Defendant 3 of the above judgment below received 791,480,000 won as a discount and fraudulently acquired them under the pretext of the above eight copies of the above bills by acquiring them from the due South Korea's rule that Co-Defendant 3 of the above judgment below was entitled to discount.

1. Defendant 2:

As described in paragraph (1) or (2), he knows that the above money is a stolen which Co-Defendant 3 embezzled as described in paragraph (1) or is a stolen which he acquired as described in paragraph (2);

A. On March 14, 198 of the same year, the defendant's house (detailed address omitted) was kept in custody of 95,000,000 won at the defendant's house and was received upon request from the defendant, and the goods were stored in the above collection cooling room, freezing room, hold-out room, beer, beer, beer, beer, etc. from the time to the 27th of the same month; and

(b)(1) 3,000,000 won at the same place on the 14th day of the same month;

(2) 3,000,000 won at the same place on the 17th day of the same month;

(3) 4,000,000 won at the same place on the 18th day of the same month;

(4) 10,000,000 won at the same place on the 19th day of the same month.

To acquire a total of KRW 20,000,000 upon receipt;

2. Defendant 1:

With knowledge that the above money is a stolen that Co-Defendant 3 embezzled as described in paragraph (1) or that it is a stolen that he acquired through deception as described in paragraph (2), he received the above money from Co-Defendant 3 of the court below and received a request from the above Co-Defendant 3 of the court below to deliver it to the above Co-Defendant 3 of the court below, and

On March 27, 1996, at around 13:00, Defendant 2’s above house, deposited KRW 70,000,000 among the above KRW 95,00,000 from Nonindicted Party 1, Defendant 2’s wife, and acquired stolen goods, such as withdrawing KRW 68,00,000 among them, from time to time to time, and making a voluntary consumption.

(2) In full view of co-defendant 3 and 3 of the lower court’s statements and the evidence duly examined by the lower court, the following facts can be acknowledged.

① Co-defendant 3 of the above judgment below is a director of the business team who worked in the Sejong Institute from around December 1, 1986 to around March 10, 196 and was engaged in the sales and collection of goods of the above company. around February 28, 1996, Co-defendant 3 of the above judgment below kept 272,122,612,532 won, total face value of 126,618,646 won and 4,907,694 won and 1,108,409,059 won and 2,461,228 won and 1,29,715,532 won and 272,272,122,122,15,15,1599 won and 270,241,251,254,267,294,257, 194, 2605, 297, 2014,57, 14,257,

(2) According to the above company's provisions, if a business operator receives a discount from a customer, he/she shall, in principle, deposit the discounted amount or promissory note into the company on the day on which the discount is made: Provided, That it may be made late on the day immediately preceding the day, and if the next day is a legal holiday, he/she may keep it by the business operator until three days. If a business operator deposits a promissory note at a discount, it is not necessary to deposit it in cash, and it shall be deposited into a promissory note. If a business operator deposits a promissory note at a discount in cash, the amount equivalent to the discount charge short of the face value shall be treated as unpaid amount, and there was no need to discount it for the deposit in the case of a promissory note from

③ On March 4, 1996, Co-defendant 3 of the court below issued 746,480,00 won on the same day as the bill discount, and issued 746,480,000 won on the same day on July 45, 199, and 70,000 won on the same day on the same day under the pretext of the bill discount, to the above Yong-Nam-Nam-si's bill and in cash (However, it is not clear in the record where the cash was correct).

④ Co-defendant 3 of the lower judgment, among the cashier’s checks and cash received as above, deposited KRW 250,000,000 on the 5th of the same month and June of the same month in cash, and deposited KRW 341,00,000 in each passbook under the name of the new bank, and deposited KRW 24,00,000 in each passbook under the name of the new bank, and withdrawn most of the deposited money in cash until the 8th of the same month.

⑤ Co-defendant 3 of the lower court, around the 9th of the same month, stored KRW 130,000,000 in cash to the Sungsung, and KRW 244,00,000 in cash to the Lee Ho-ho around the 11st of the same month, and KRW 100,000 in cash, around the 10th of the same month, to the Nonindicted Co-defendant 3 respectively.

【 Defendant 2 received KRW 95,00,000 in cash from Co-Defendant 3 at the above Defendant’s house around March 14 of the same year with a request from the above Co-Defendant 3 to keep it in custody, and kept it in the above house cooling room, freezing room, camping room, beer, etc. from around 27 of the same month. Defendant 2 received KRW 3,00,000 in cash around 17 of the same month, KRW 3,00,00 in cash around 10,00 in cash, KRW 4,000 in the same month, KRW 10,000 in cash around 19 of the same month, and KRW 10,000 in cash around 10,00 in the above month, and then received KRW 10,000 in cash from the above Co-Defendant 3 at any time from 00,000 in the above Defendant’s deposit account at around 00,000 in the above month, and then received KRW 30130,0000.

(3) According to the above facts, Co-Defendant 3 of the court below's judgment made an objective expression of the intent of unlawful acquisition by requesting the above regular South Korea to discount eight copies of the above bill, so it shall be deemed that 8 copies of the above bill were embezzled at the time of issuance. Thus, the stolens of embezzlement are 8 copies of the above bill, and the cashier's checks or cash delivered from the above regular South Korea regulations are acquired in return for the disposal of stolen goods, not stolen goods. However, although Co-Defendant 3 of the court below did not have the right to discount eight copies of the above bill, even if he did not have the right to discount the above bill, he did so as if he had the legitimate authority to discount the above bill, and delivered it to the above regular South Korea at the discount of the above bill, and then acquired 791,480,000 cashier's checks and cash in return for the above bill from the above regular South Korea regulations, and thus, it shall be deemed that the above new legal interests were infringed, and thus, the above new kind of cash withdrawal and the above cashier's should be established.

(4) Thus, each of the above cash acquired or kept by the defendants is a stolen, if Co-defendant 3 of the court below received the above money from the above Jungnam's rule, but the above co-defendant 3 of the court below should not be a stolen, if the cash withdrawn from each of the above banks as above is not a stolen, and there is no evidence to acknowledge that the cash acquired by the defendants was not a cash withdrawn from the above banks as above, but a cash delivered from the above Jungnam's rule.

(4) Therefore, since the facts charged in the above part of the facts charged fall under the absence of proof of the crime and must be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, among the judgment of the court below, the part on the acquisition of stolen goods by Defendant 1 and the part on Defendant 2 in the judgment of the court below as to the acquisition of stolen goods by mistake of facts or misunderstanding of legal principles as to the crime of stolen goods constitutes

3. As to Defendant 1’s crime of fraud, fabrication of private documents, and uttering thereof

First of all, in full view of the evidence duly admitted by the court below, such as the defendant's statement in the court below and the investigation agency of Kim Jong-type, the victim's statement, etc., as to the argument of mistake of facts, the above defendant can sufficiently recognize the fact that the defendant committed each crime in the judgment of the court below in order to withdraw the money of re-building of the victim Kim Jong-type without the husband's consent, and even after examining the record, no illegality is found in the process of fact finding

Next, as to the assertion of unfair sentencing, the above defendant committed the remaining crimes of this case, which the victim, her husband, withdrawn the above re-building savings fund and made a fluort all at the drinking value. The above defendant had no particular criminal record before this case, and considering various factors, such as the above defendant's age, character and conduct, growth environment, the means and consequence of the crime of this case, the circumstances after the crime, etc., which are the conditions of the punishment lawfully investigated by the court below, the sentence imposed by the above defendant is too unreasonable.

4. Conclusion

Therefore, since the defendants' appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment below is again ruled as follows.

Criminal facts and summary of evidence

The criminal facts of Defendant 1 recognized by this Court and the summary of the evidence thereof are as shown in each corresponding column of the original judgment [the Seoul District Court Decision 95Da3479 delivered on April 23, 1996, and 96Dadan88 delivered on April 23, 199). Thus, all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Articles 231(a) and 234(a) of the Criminal Act; Article 2 of the Addenda to the Criminal Act; Article 347(1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995); Article 4(1)(a) of the former Act on Temporary Measures, such as Fines, etc. (amended by Act No. 5167 of Nov. 23, 1996); and (b) selection of fines, respectively.

2. Aggravation of concurrent crimes;

Article 37 former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of Punishment and Aggravation of Punishment in Relation to Uttering of Illegal Investigation Documents with Aggravation of Crimes)

3. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

4. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

Judgment on the acquittal

As seen earlier, among the facts charged in the instant case against Defendant 1, the point of acquiring stolen goods and the summary of the facts charged against Defendant 2 are as follows. As determined in the above reasons for reversal, the above facts charged do not have evidence of crime, and thus, each of the above facts charged is acquitted pursuant to the latter part of Article 325 of the

It is so decided as per Disposition for the above reasons.

Judges Lee Jong-young (Presiding Judge)