전기통신금융사기에 사용된 계좌에서 현금을 인출한 행위에 대한 횡령죄 성립여부 - 대법원 2017. 5. 31. 선고 2017도3894 판결 - = Whether the embezzlement of the act of withdrawing cash from the account used for the telecommunications finance fraud is established

다국어 초록 (Multilingual Abstract)

As mentioned above, in relation to the act of providing the account of the defendant in the name of the defendant, the relationship between the defendant and the victim of the fraud may be discussed in relation to the act of the embezzlement or misdemeanor .Since the act of providing the deposit account to be used for the fraudulent offense can be regarded as the property of the defendant, the defendant is expected to return the money transferred to the deposit account to the principal. Therefore, it corresponds to the object of embezzlement. However, because the defendant acquired the status of keeping the money due to the support of the fraud, the embezzlement is not established because the fiduciary relationship based on the new relationship is not recognized in relation to the victim of the fraud.
For the defendant, the victim of the fraudulent sent money, the fraudulent crime came to the jockey, and the defendant can be deemed to have a de facto control over the money. In order to establish a crime of acquiring a fortune, it is difficult to judge that the defendant, who is the main cause of fraud, has obtained the right to dispose of the money. The defendant, however, would be able to recognize the possession of a stash. In the case of guilt-keep-ing, it is a question of whether the act of using the object is an embezzlement. Since it can not be said that there is a trust relation that the law can protect until it is commissioned as a criminal means, the criminal law does not need to be involved in such betrayal. Therefore, the establishment of embezzlement for illegal cause pay should be denied.