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The judgment below
The non-guilty portion shall be reversed, and this part of the case shall be remanded to the Seoul District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. Where the deposit account opened by the account holder is used to commit the crime of telecommunications financing fraud, and the damage to the account transfers the amount of fraudulent damage to the account, the account holder is in the position of keeping the amount of fraudulent damage for the victim, since he/she returns the money equivalent to the amount of the remittance from the remittance to the victim without any legal relationship with the victim;
It should be seen that if the account holder withdraws the money with the intent to obtain it, the crime of embezzlement is established against the victim.
In this case, if the account holder is the accomplice of fraud, he/she has the custody of the amount of damage as a result of the crime committed by himself/herself, and there is no consignment relationship with the victim. Even if he/she withdraws the transferred money, it cannot be deemed as a violation of new legal interests since it is merely an act of the commission of the fraud committed by himself/herself, and thus, it does not constitute a separate crime of embezzlement except for fraud (see Supreme Court Decision 2017Do17494, Jul. 19, 2018). 2. Of the instant facts charged, the summary of embezzlement and the judgment of the court below are as follows.
A. On May 21, 2017, the Defendant: (a) opened a cash card connected to the E bank account under the name of the Defendant (K) with the non-resident; and (b) G transferred KRW 6070,000 to the said E bank account of the Defendant, following the Defendant’s non-beneficiary’s criminal act of licensing fraud.
The Defendant deposited KRW 1.5 million out of KRW 6.7 million into the TOSS account under one’s name, and thereafter returned to the said E bank account, and then withdrawn KRW 1,443,308 out of the amount being kept on June 12, 2017, and used it for personal expenses.
As a result, the Defendant arbitrarily used KRW 1,443,308 out of the amount of the instant fraud damage, and embezzled G property and the property of a person without a name, who acquired the instant account’s access medium.
B. On the grounds delineated below, the lower court is the primary and conjunctive.