In case where cash and cashier's checks, which are stolen goods, were deposited in a financial institution and withdrawn in cash, whether the withdrawn cash is lost (negative)

The stolen property refers to the stolen property itself, and the disposal price of the stolen property means the stolen property. However, in light of the fact that money is highly substituted and can be easily exchanged with another kind of currency because it has a high level of substitution, and that the money itself has no particular meaning and the monetary value indicated by the amount is distributed with the meaning of the transaction, it is reasonable to view that in the case where the stolen cash is stored in the form of a financial institution and withdraws the same amount of cash in order to return it, in the nature of the deposit contract, the cash withdrawn in the form of the original cash and the physical identity, but there is no change in the monetary value indicated by the amount, the nature of the stolen shall be maintained as it is. The cashier's checks shall also be regarded as the same as money in the case of cash in the same way that the cash is treated as the transaction with the function of immediately receiving the face value.

Article 362(1) of the Criminal Act

Supreme Court Decision 71Do2296 Decided February 22, 1972 (No. 20-1, 34) Supreme Court Decision 72Do971 Decided June 13, 1972 (No. 20-2, 30) Supreme Court Decision 82Do822 Decided July 27, 1982 (Gong1982, 887), Supreme Court Decision 86Do1728 Decided January 20, 1987 (Gong1987, 323), Supreme Court Decision 93Do213 Decided November 23, 193 (Gong194, 223)

Defendant 1 and one other

Prosecutor

Seoul High Court Decision 97No88, 778 delivered on July 9, 1998

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Facts acknowledged by the court below

According to the reasoning of the judgment below, the court below acknowledged the following facts after compiling the adopted evidence.

A. Co-defendant of the first instance court, who was engaged in the sale and collection of goods as the director of the tax office of the non-indicted corporation, knew that he himself is the subject of reduction. On March 5, 1996, the co-defendant of the first instance court, who was issued 829,124,426 won from the non-indicted Co., Ltd., the non-indicted Co., Ltd., the business partner, and the party against the non-indicted Co., Ltd., with the intention to acquire the total of 8,29,124,426 won in the promissorysory note which was kept in custody as the price for the goods, who did not have the right to request a discount, requested the Non-indicted Co., Ltd., the non-indicted Co., Ltd. to grant a discount to the Non-indicted Co., Ltd., the amount of KRW 746,480,000 on the day of discount, and received 25,500,000 won in cash and deposited money in his name by 280,000,00 won.

B. On the 14th day of the same month, Defendant 2 received, at his own house, the money of KRW 95 million, among the cash acquired and kept in custody as above, from the Co-Defendant 2, and kept it in his house by not later than the 27th day of the same month, and acquired, respectively, the cash of KRW 3 million on the 14th day of the same month from Co-Defendant 2, KRW 3 million, cash of KRW 4 million on the 18th day of the same month, and cash of KRW 10 million on the 19th day of the same month.

C. Defendant 1 received a request from the Co-Defendant 2 for delivery of KRW 95 million in cash, which Defendant 2 had been kept in his custody, from the Co-Defendant 2, at the home of Defendant 2, at around 13:30 on the 27th day of the same month, he received a gold of KRW 70 million out of KRW 95 million in cash from Defendant 2’s wife Nonindicted Party 1, and deposited KRW 68 million in the deposit account in his name and consumed it from time to time.

2. As to the assertion of violation of the rules of evidence and misapprehension of the legal principle on embezzlement

Examining the relevant evidence in light of the records, the court below is just in finding that Defendant 1 received only KRW 70 million out of KRW 95 million from Nonindicted 1 as above, and there is no error of misconception of facts due to violation of the rules of evidence as otherwise alleged in the ground of appeal.

In addition, the argument in the grounds of appeal to the effect that the embezzlement of Co-Defendant 1 was completed only when he received cashier's checks and cash under the name of discount from regular South Korea regulations, and that the cashier's checks and cash is not the stolen goods of fraud to the regulations of the Co-Defendant 1, but the stolen goods of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) to Sejong Co-Defendant 1, is not the stolen goods of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

3. As to the assertion of misapprehension of legal principles as to stolen property

A. The lower court acquitted the Defendants on the charges that the Defendants, despite being aware that the cash received from Co-Defendant 1 or Nonindicted 1 was stolen, kept or acquired as described in paragraph (1)-B and (3), on the following grounds.

As above, the Co-defendant of the first instance trial's receipt of cashier's checks and cash under the name of eight discount payments of promissory notes which are decided by deceiving regular South Korea as above is not an act of any act subsequent to the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) established by requesting the payment of eight promissory notes as indicated by the Co-defendant of the first instance trial, but an act of infringing new legal interests and interests. These cashier's checks and cash constitutes a crime of fraud. However, these cashier's checks and cash are the goods acquired in return for the disposal of stolen goods that the Co-defendant of the first instance court deposited part of the cashier's checks and cash again withdrawn from the bank, and they already lost stolen property. Since there is no evidence to prove that the cash kept or acquired by the Defendants is not cash withdrawn from his deposit account, but cash delivered from the due South Korea by the Co-defendant

B. However, this part of the judgment of the court below is not acceptable.

In light of the fact that stolen property means the stolen property acquired through the crime of property and the disposal price of the stolen property loses stolen property (see, e.g., Supreme Court Decisions 72Do971, Jun. 13, 1972; 71Do2296, Feb. 22, 1972; 71Do2296, Feb. 2, 1972). Money can be easily exchanged with other types of currency because it has a high level of substitution, and the money itself has no particular meaning and is distributed with the meaning of transaction. In the event that stolen cash is stored in a financial institution and withdraws the same amount of cash in order to return the cash after being returned, it is reasonable to deem that the cash withdrawn due to the nature of the deposit contract has no change in the monetary value expressed in the amount, but has no change in the value expressed in the amount, and thus, the nature of stolen property remains intact (see, e.g., Supreme Court Decision 9Do2269, Sept. 17, 1999).

Therefore, it cannot be deemed that Co-Defendant 1 deposited cashier's checks and cash in his/her name in a deposit account and withdrawn cash in cash does not lose the character of stolen goods. If the Defendants knowingly kept or acquired them, then the crime of stolen goods is established.

Nevertheless, as seen above, the court below found the defendants not guilty on the ground that there is no evidence to acknowledge that the cash received by the defendants is the cash itself received from the court of first instance due to the fact that the co-defendant was not guilty. The court below erred in the misapprehension of legal principles as to stolen property, which affected the conclusion of the judgment, and the ground of appeal

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)