In a case where an account holder acquires money equivalent to a deposit claim by account transfer even if there is no legal relationship causing a remittance or transfer, whether the remitter is in the position to keep the wired money for the remitter (affirmative); and whether embezzlement is established if the account holder withdraws money with the intent to obtain the money without keeping the money as it is (affirmative) / In a case where the deposit account opened by the account holder is used in the crime of fraud and the victim wired and transferred the money to the account, whether embezzlement is established against the victim if the account holder withdraws the money with the intent to obtain the money (affirmative)

Articles 347 and 355(1) of the Criminal Act

Supreme Court en banc Decision 2017Do17494 Decided July 19, 2018 (Gong2018Ha, 1801) Supreme Court en banc Decision 2017Do21715 Decided July 26, 2018

Defendant

Prosecutor

Incheon District Court Decision 2017No4698 Decided May 4, 2018

The non-guilty part of the judgment below shall be reversed, and that part of the case shall be remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. Although the account holder does not have any legal relationship causing a remittance and transfer, the account holder is obliged to return the money equivalent to the deposit claim acquired by the account transfer to the remitter. As such, the account holder is deemed to have the status of custody of the remitter for the wired money. Therefore, the crime of embezzlement is established if the account holder withdraws the money with the intent to receive the wired money without keeping it as it is. This legal doctrine applies likewise to the case where the deposit account opened by the account holder was used in the crime of fraud and the victim wired and transferred the money to the account. If the account holder was used in the crime of fraud and the account was wired and transferred the money to the account, the account holder is deemed to have the status of keeping the defrauded money for the victim. If the account holder withdraws the money with the intent to obtain it, then the crime of embezzlement is established (see Supreme Court en banc Decision 2017Do17494, Jul. 19, 2018).

2. Examining the aforementioned legal principles, the reasoning of the lower judgment, and the evidence duly admitted, the Defendant’s arbitrary withdrawal of and consumption for the money remitted by Nonindicted 1 and Nonindicted 2 to the Defendant’s account under the name of the Defendant, as stated in the principal facts charged regarding embezzlement, can be seen as constituting embezzlement against the said person.

Nevertheless, the lower court recognized that the crime of embezzlement was not established on the grounds as indicated in its reasoning, and upheld the first instance judgment that acquitted the Defendant of this part of the facts charged. In so determining, the lower court erred by misapprehending the legal doctrine on embezzlement, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

3. Therefore, the part of the judgment of the court below on the primary charge of embezzlement should be reversed, and accordingly, the part on the ancillary charge in relation to the same body should be reversed. Thus, the part on the acquittal among the judgment below is reversed, and this part of 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 on the bench.

Justices Kwon Soon-il (Presiding Justice)