beta
Text
The defendant shall be innocent.
Reasons
1. The summary of the facts charged: (a) on July 8, 2016, the Defendant embezzled 10 million won for voluntary consumption, such as the purchase of automobiles, which was transferred by the victim C to the Korean bank D account under the name of the Defendant, at the expense of the Defendant.
2. Determination
A. If a criminal of telecommunications financing fraud (the so-called Bosing crime) has received money from a victim by deceiving the victim to transfer the money from the victim to the account using the fraud, then the act of defraudation is consummated.
Therefore, the criminal possessed the money of the victim.
Even if this does not lead to any entrustment or trust relationship between the victim and the victim, there is a status to keep the victim's money.
In addition, the offender withdrawn cash from the account exploited for fraud thereafter.
Even if it is difficult to say that the act is nothing more than the act of the act of the crime of fraud that has been already constituted and thus it infringes on new legal interests, such act of withdrawal does not constitute embezzlement against the victim of the fraud.
In addition, such a legal doctrine likewise applies to cases where a person who aids and abets the crime of fraud by transferring his/her own account access medium with the knowledge of the fact that he/she would be used for the crime of fraud voluntarily withdraws the money of the victim that was remitted to the account exploited for fraud (see Supreme Court Decision 2017Do3045, May 31, 2017). (b) According to the evidence duly adopted and duly examined by the court, the fact that the victim was subjected to telecommunications fraud and deposited money into the account under the name of the defendant, and the fact that the defendant withdrawn and used the money.
In this regard, according to the above facts, the reason why the victim deposited money into the defendant's account is merely by deception, and there is a consignment or fiduciary relationship between the defendant and the victim, separate from the fact that the crime of embezzlement is established.