The judgment below

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

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 December 2, 2016, the Defendant: (a) sent one physical card connected to the D Bank Account (E) account under the name of the Defendant to the nameless person; (b) notified the account number and password; and (c) on the same day, the nameless person was opened to I on the same day.

The phrase “I withdraw and send the deposited money as required for confirmation work,” and caused I to remit I to the said D Bank account.

On the same day, the Defendant transferred KRW 1,044,00,000, out of KRW 6.9550,000, which I remitted to the said D bank account eight times as above, to mobile banking for his/her own debt repayment.

As a result, the Defendant arbitrarily uses KRW 1,044,00 out of the amount of the instant fraud damage, and instead takes over the I’s primary property and the Defendant’s name and non-brupted property by taking over the access media to the instant account.