Defendant

Prosecutor

Red Tyer

Cheongju District Court Decision 2004Ma664, 695 (Joint Judgment) Decided September 21, 2004

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

The number of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for three years from the date of the final judgment.

The defendant shall be subject to probation and shall be ordered to provide community service for 120 hours.

1. Summary of grounds for appeal;

The summary of the prosecutor's grounds for appeal is that the court below acquitted the defendant on the fraud by using computers, etc. among the facts charged in this case. The court below acquitted the defendant on the grounds that the legal evaluation of the Article or the facts charged applied merely is erroneous, not on the grounds that the defendant illegally acquired the money in the judgment, but on the grounds that there is a legal evaluation of the Article or the facts charged, the court below applied ex officio applicable the appropriate applicable provisions of law or the prosecutor has a duty to request the change of the indictment,

2. Grounds for ex officio destruction;

Before the prosecutor's judgment on the grounds for appeal, the prosecutor shall, in its entirety, appeal against the judgment of the court below (Provided, That the prosecutor did not claim the grounds for appeal against the guilty portion), and since the acquittal portion of the case constitutes the larceny in relation to the crime of violation of the Act on the Punishment, etc. of Specific Crimes, which is the guilty portion at the time of the original judgment, and the crime of violation of the Act on the Punishment, etc. of Specific Crimes, which is the guilty portion at the time of the original judgment, this part of the facts charged is modified as follows: "the summary of the facts charged"; "Article 5-4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 329 of the Criminal Act, Article 347-2, and Article 360(1) of the Criminal Act, which is the initial applicable provisions of the Act, has withdrawn "Article 347-2 of the Criminal Act"; and the court applied for change of the indictment to delete the fraudulent part

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act without examining the above grounds for appeal, on the grounds of ex officio reversal, and the judgment below is reversed, and the pleading is reversed as follows.

The summary of the facts charged and the evidence admitted by this court are as stated in the judgment of the court below, and they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 5-4 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 329 and 360 (1) of the Criminal Act

1. Aggravation of concurrent crimes;

Article 37 (former part) and Article 55 (1) 3 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Article 62(1)(Article 62(1)(Article 62(1)(Article 62(1) cannot be deemed to be serious damage caused by the theft of this case, and considering the fact that the Defendant

1. Probation and social service;

Article 62-2 (1) of the Criminal Act

1. Summary of the facts charged

The summary of this part of the facts charged is as follows: (a) around 10:00 on February 2, 200, the Defendant withdrawn KRW 20,000 from the non-indicted 598-2’s cash card owned by the non-indicted YAF at the YFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFF

2. Determination

In light of the records, the defendant, as stated in the facts charged, has been delegated by the non-indicted person to withdraw KRW 20,00 with the cash card owned by the non-indicted person as stated in the facts charged, and then has withdrawn KRW 50,000 from the cash payment machine managed by the Chungcheong Agricultural Cooperatives, and then has obtained 30,000,000, which is the excess portion, without returning it to the non-indicted. However, in the case of larceny, it refers to the act of removing the control of the possessor against the will of the possessor of the property and transferring his control to the non-indicted. It is difficult to view that the cash payment is made in accordance with an agreement between the financial institution, such as a bank, etc. and the depositors, to automatically process the information pursuant to a certain computer program if the depositor entered the personal identification card designated by the bank, etc., and if accurate information, such as the cash card inserted in the cash payment machine and password, it has the characteristics of being lawfully withdrawn within the scope of the deposit payment, regardless of who the user of the cash payment card, the owner’s consent to the cash payment card.

Therefore, it cannot be deemed that the act of withdrawing cash constitutes a theft of the cash possessed by it against the will of the manager of the cash payment period, and there is no evidence to deem that the said act of withdrawing cash was done against the will of the manager.

3. Conclusion

Thus, since this part of the facts charged constitutes a case where there is no proof of crime, it should be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act. However, inasmuch as it is found guilty of violating the Act on the Aggravated Punishment, etc. of Specific Crimes, which was instituted as a comprehensive crime, it shall not be

Judges Embryoon (Presiding Judge)