[1] The standard for determining whether an occupant has intent to acquire unlawful property where another person's property is used without the consent of the occupant

[2] In a case where a bank or a debit card of another person transfers money to its own bank account without permission and then returned the debit card, whether larceny against the debit card is established (negative)

[1] In cases where the property of another person is used without the consent of the possessor without the permission of the possessor, if the property is consumed to the extent that the economic value of the property itself was considerably consumed or used in another place other than the original one, or it is in possession of the property for a long time after the use, the intention of unlawful acquisition may be recognized by deeming that the owner has the intention of infringing the ownership or the original right as being in violation of the ownership or the original right. However, if the use is not so minor that the consumption of the value due to the use can be disregarded, and if the use is the same as the return immediately after the use, the intention of unlawful acquisition cannot be deemed as being infringed

[2] Even if a bank transfers money from a bank's bank account to another person's bank account by using a debit card issued by the bank, it cannot be deemed that the economic value of the debit card itself was spent as much as the account transfer amount. Thus, in a case where the bank uses it as a lump sum and returned it immediately, it should be deemed that there was no intent to acquire illegal profits from

[1] Article 329 of the Criminal Act / [2] Article 329 of the Criminal Act

[1] [2] Supreme Court Decision 98Do2642 delivered on November 10, 1998 (Gong1998Ha, 2907) Supreme Court Decision 99Do857 delivered on July 9, 199 (Gong1999Ha, 1675) / [1] Supreme Court Decision 87Do1959 delivered on December 8, 198 (Gong198, 306) Supreme Court Decision 92Do118 delivered on April 24, 1992 (Gong192, 1771) (Gong200Do493 delivered on March 28, 200)

Defendant

Prosecutor

Gwangju District Court Decision 2005No1500 Decided September 30, 2005

The appeal is dismissed.

The grounds of appeal are examined.

In cases where the property of another person is used without the consent of the possessor without the permission of the possessor, if the property is consumed or used to a considerable extent of economic value of the property itself, or if the property is dumped in another place other than the original place, or it is in possession of the property for a long time without the return, the intention of unlawful acquisition may be recognized by deeming that it is intended to infringe on the ownership or principal right. However, it is minor that the consumption of the value due to the use may be disregarded, and if the property is returned immediately after the use, it cannot be said that it is intended to infringe on the ownership or principal right, and it cannot be said that it is intended to infringe on the ownership or principal right (see Supreme Court Decisions 87Do1959, Dec. 8, 1987; 92Do118, Apr. 24, 1992; 9Do857, Jul. 9, 199).

However, even if the bank transferred money from the bank's bank's bank account to its own bank account, since the economic value of the debit itself cannot be deemed to have been spent as much as the account was transferred, it shall be deemed that there was no intent to acquire unlawful use of the debit card (see Supreme Court Decisions 98Do2642, Nov. 10, 198; 9Do857, Apr. 11, 2002; 99Do857, Apr. 11, 2002). Accordingly, the defendant's act of larceny against the defendant's non-indicted 1's Handbabbath from the Bank's bank's transfer of the debit card to the defendant's bank's account at the Gwangju mine, and the defendant's act of larceny cannot be deemed to have been justified in the misapprehension of the legal principles as to the above part of the debit card as alleged in the ground of appeal against the non-indicted 1 and the non-indicted 2's transfer of the above debit card to the defendant's bank account.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Sung-tae (Presiding Justice)