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The defendant shall be innocent.
Reasons
1. On December 27, 2016, the Defendant voluntarily consumed the cash withdrawal period from a new bank month located in the Dong-gu Incheon Metropolitan City, Dong-gu 25, 2016, with the knowledge that the Defendant was deposited with a new bank account (C) in the name of the Defendant who known the name-dissipant of the Defendant to the name-dissipant of the money. The Defendant used the check card connected to the said account and then released KRW 1 million which was stored in the said account by the name-dissipator of the name-dissipant of the money and then voluntarily consumed it.
2. Determination
A. If a criminal of telecommunications financing fraud (the so-called Bophishing crime) has received money from a victim by deceiving the victim and then has received money from the victim to the account using the fraud, the act of defraudation is deemed to have been completed.
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In addition, the offender withdrawn cash from the account exploited for fraud thereafter.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 paper offender who aids and abets the crime of fraud by transferring his/her own account access medium even with the knowledge of the fact that he/she would be used for the crime of fraud voluntarily withdraws the victim’s money wired to the account exploited for fraud (see Supreme Court Decision 2017Do3045, May 31, 2017). (b) Meanwhile, in the instant case, the prosecutor did not prosecute the fact that the Defendant informed his/her account number to a person who was not the victim of his/her name as an offense of fraud, but did not take part in the crime of fraud unless the entrustment or trust relationship between the victim and the criminal is acknowledged after the crime of fraud.