전기통신금융사기 범행에 이용된 계좌에서 계좌명의인의 현금인출과 횡령죄 성립 여부- 대법원 2018. 7. 19. 선고 2017도17494 전원합의체 판결 -

This paper is an interpretation of the Supreme Court Decision of the Supreme Court 2018. 7. 19. Sentence 2017Do17494. The issue of this ruling is: ① Whether or not the legal principles of remittance error applies equally to a case where the deposit account opened by the account holder is used for the crime of telecommunications fraud, and the victim remits or transfers the fraudulent damage amount to the account, ② whether the fraudulent victim, the remitter, can be recognized as a victim of a fraudulent act as the fiduciary relationship between the contract owner and the fraud victim can be acknowledged in accordance with the principle of faithfulness, ③ whether the admissibility of an embezzlement of the access medium assignee can be acknowledged because the entrusted relationship between the contract holder and the access medium assignee can be recognized. The majority opinion of the object judgment affirms the issue of ① and ② and acknowledged that the crime of aiding and abetting fraud is not established if a deposit account opened by an account holder is transferred to another person to commit fraud in telecommunication financing, and the fraudulent victim remits or transfers the damage money to the account, but the account holder is unaware of the fact that the account will be used to commit telecommunications fraud. However, when the withdrawal of the money was made with the purpose to acquire it, it was acknowledged that the embezzlement of the victim of the fraud was established. However, separate opinion and dissenting opinion of the object judgment disagrees with the ruling. However, the conclusion of this objection is not valid as it applies the legal principles of remittance error by overlooking the difference in the remittance error structure, which is the relationship between the two parties, and remittance error structure by telecommunications fraud, which is the relationship between the three parties, and understanding them as an identical structure. In addition, it shows the problem of expanding the culpability by interpreting the principle of the criminal statutory principle by recognizing the entrusted relationship between the account holder and the remitter, who is the fraudulent victim, although there is no transactional relationship, notwithstanding the fact that the embezzlement is a true identity crime, and it requires strict interpretation in recognizing the subject of the act. In addition, in relation to the issue of ③, the separate opinion of the object judgment admitting the embezzlement of the access medium assignee is also not valid as in accordance to the electronic financial transactions act, the holder of the account and the transfer access medium assignee is guilty of violating the act of transferring and receiving access medium, act on real name financial transactions and guarantee of secrecy, and aiding and abetting it, and there is no value of moral protection of the fiduciary relationship between these offenders. In conclusion, even though a criminal policy request for strong criminal punishment for a telecommunications fraud is admitted, the trust relationship in embezzlement, which is based on the violation of the trust relationship, should be confined to the “trust relationship worthy of protection”, and judgment on whether such trust exists or not and acceptance of fiduciary relationship based on the principle of good faith should be strictly followed by criminal statutory remedies. Accordingly, if a bank account holder who does not know the telecommunications fraud has arbitrarily withdrawn the money remitted or transferred to the account, the embezzlement cannot be acknowledged because the fiduciary relationship by the principle of good faith cannot be recognized to either the remitter who is a fraud victim or the access medium assignee. It is reasonable, however, to acknowledge the establishment of a lost-property embezzlement for a fraudulent victim.