Whether the act of withdrawing cash in excess of the delegated amount with the request to withdraw a certain amount of cash from the owner of the cash card, which is the depositor, constitutes a crime of fraud by use, such as computer, etc. (affirmative)

If the cash account holder entered the amount equivalent to the difference in cash in the cash automatic machine with the intent to illegally gain profit from the cash account by means of withdrawing the cash account received at the request of the owner of a cash card who is the deposit account and then withdraws the cash of the amount in excess, then he shall be deemed to have acquired property profit equivalent to the ratio of the portion exceeding the delegated amount out of the total amount of cash withdrawn at the time of the acquisition of possession of the withdrawn cash. Such act constitutes a crime of fraud by using a computer, etc., as provided in Article 347-2 (Fraud by Use of Computer, etc.) of the Criminal Act with respect to the amount equivalent to the difference.

Article 347-2 of the Criminal Act

Defendant

Prosecutor

Attorney Lee Jae-in

Cheongju District Court Decision 2004No1160 decided May 18, 2005

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Examining the reasoning of the lower judgment and the record, as follows.

A. First, the part concerning the crime of fraud by use of computers, etc. in the facts charged prior to the alteration was made out of cash card with the victim non-indicted 20,000 won at the Chungcheong Agricultural Cooperative Triju 10,00 on the first day of February 203, 200, and then the defendant obtained 30,000 won for the victim's 20,000 won from the non-indicted 25,00 won in cash card in the same 676-53 in the same 676-53, with the request of the non-indicted 20,000 won to withdraw from the 30,000 won in cash card owned by him. The above part of the facts charged prior to the alteration was made by inserting the above cash card in an automatic cash withdrawal machine installed at the above 50,000 won and then withdrawn the amount without authority.

On the other hand, the first instance court determined that the act of withdrawing cash from an automatic cash payment machine with another person's credit card can not be punished as a fraud in use of the computer, etc. so long as it is clear that the act of withdrawing cash is a crime of property, since the Criminal Code stipulates that the object of the crime of property or property benefits is property or property benefits, and Article 347-2 of the Criminal Code provides only the object of the crime of fraudulent use such as computer, etc. as property benefits.

B. The prosecutor of this part of the facts charged at the court below: (a) withdrawn 20,000 won from the Nonindicted Party’s agricultural cash card owned by the Nonindicted Party at the above temporary location; and (b) entered 50,000 won in the cash automatic machines managed by the victim Chungcheong Agricultural Cooperative, which was installed at the above point, and then withdrawn the amount of the cash card; and (c) subsequently, he applied for amendments to bill of indictment by deeming that only 20,000 won was stolen from the Nonindicted Party by hanging the Nonindicted Party; and (d) the court below permitted it.

However, the lower court rendered a not guilty verdict on the facts charged above for the following reasons. In larceny, it means the act of removing the possessor from the control of the possessor against the will of the possessor of the stolen property and transferring it to his control. However, as long as the Defendant is granted the right to use the cash card itself as when he stolens a cash card, unlike the case where he does not have the right to use it, as long as he/she was given the right to use the said cash card by the Nonindicted Party, the deposit holder, he/she is bound to lawfully pay the withdrawing person for the account of the deposit holder. Therefore, in such a case, it is difficult to view that the manager of the automatic payment machine, as he/she was involved in the internal delegation relationship between the deposit holder of the deposit and the person to whom the withdrawal of cash was delegated by him/her, and expressed his/her intent not to accept the withdrawal of cash. Therefore, it cannot be deemed that the act of withdrawing cash constitutes a theft of cash which he/she occupies against his/her will of the

2. However, the lower court’s determination is difficult to accept.

A. In a case where the cash account holder entered the cash account equivalent to the difference in the cash account in the cash account form with the intent to illegally gain profit from the cash account by means of withdrawing the cash account from the account holder's request for withdrawal of a certain amount of cash, and then withdraws the cash account amount in excess of the amount delegated by the said request, the owner of the cash account holder shall be deemed to have acquired property profit equivalent to the ratio of the portion exceeding the delegated amount out of the withdrawn cash amount at the time of the acquisition of possession of the withdrawn cash account. As such, the act is deemed to constitute a crime of fraud, such as computer, etc., by acquiring property profit equivalent to the ratio of the portion exceeding the delegated amount out of the withdrawn cash amount. As such, with regard to the amount equivalent to the difference, the act constitutes "acquisition of property profit by making an input of information without authority in an information processing device, such as computer, etc.

B. Therefore, the Defendant’s withdrawal of KRW 20,00 from the Nonindicted Party’s agricultural cash card owned by the Nonindicted Party at the above temporary location and the receipt of the cash card with the Defendant’s request by misunderstanding, in fluorizing the cash card, and entering the said cash card into KRW 50,000 and withdrawing the withdrawn amount in the cash automatic machines managed by the victim Chungcheong Agricultural Cooperatives established at the above location, should be deemed to constitute the crime of fraud by use, such as computer, etc., first of all, as to the difference corresponding to the difference.

Therefore, the court below should have taken such measures as denying the prosecutor's application for approval of changes in the indictment as seen above and recognizing the defendant guilty of this part of the charges by fraudulent use, such as computer, etc., and once granting the amendment of the indictment to larceny, it is not recognized as guilty after the amendment. Rather, there are special circumstances where the previous charges are found guilty by fraudulent use, such as computer, etc., but it is necessary to exercise the defendant's right to defense against this case, in light of the progress of the specific litigation in this case, the court below should have pointed out such legal point of view and had the prosecutor take such measures as giving the defendant an opportunity to exercise his right to defense against such legal point of view.

Nevertheless, the court below accepted the application for changes in the indictment and judged the defendant not guilty of the above facts on the ground that it is difficult to see that the revised facts constitute larceny. In this part of the judgment below, the court below erred by misapprehending the legal principles and failing to exercise the right to ask for seat or to exhaust all necessary deliberations, which affected the conclusion of the judgment. Therefore, the prosecutor's ground of appeal that the revised facts charged constitute larceny is without merit, but the court below's judgment that acquitted the defendant of the altered facts charged is erroneous in the misapprehension of the legal principles.

3. Therefore, the judgment of the court below that found the defendant not guilty on this part of the facts charged and found the defendant guilty only on the remaining facts charged is reversed, and 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 Park Jae-sik (Presiding Justice)