(영문) 의정부지방법원 2017.06.26 2017노1169

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(영문) 의정부지방법원 2017.06.26 2017노1169

전자금융거래법위반등

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The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

Of the facts charged in the instant case, embezzlement is acquitted.

Reasons

1. Summary of grounds for appeal;

A. Regarding the embezzlement of misunderstanding legal principles, there is no consignment relationship or trust relationship between the victim and the defendant, and withdrawal of the money deposited by the victim constitutes an act subsequent to the crime of aiding and abetting fraud that has already been established, and thus, it does not constitute a separate crime of embezzlement.

B. The sentence of the lower court’s unfair sentencing (one hundred months of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of legal principles, the summary of the facts charged and the summary of the embezzlement among the facts charged in the instant case’s judgment by the lower court, even though the Defendant was aware that it will be used to commit phishing crimes, the lower court, even after transferring the passbook, etc. in the new bank account under the name of the Defendant to the non-indicted 16, deposited KRW 15 million from the victim F who was unaware of the name of the said account from the non-indicted 16, 2016, and embezzled by withdrawing KRW 9,209,943 among them, and the lower court convicted the Defendant.

In the event that the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal of the criminal

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be deemed that there was any consignment or fiduciary relationship with the victim, and the offender subsequently withdrawn cash from the account exploited for fraud.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 aided and abetted the crime of fraud by transferring his/her own account access media with the knowledge of the fact that he/she would be used for the crime of fraud has voluntarily withdrawn the funds of the victim transferred to the account exploited for fraud (Supreme Court).

유사 판례

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