계좌양도시 계좌명의인의 예금인출행위와 횡령죄 성립 여부 - 대법원 2018. 7. 19. 선고 2017도17494 전원합의체 판결 -

Abstract

The target judgment held that if the account holder withdraws a deposit from the account used for the voice phishing offense, the crime of embezzlement is established if there was no intention to commit the voice phishing offense. The Supreme Court made a theory that the embezzlement crime against the remitter was established by citing the precedent of the mistaken remittance, and it has been criticized a lot. However, this case should have been examined first to see if it constituted a crime of fraud. This is because the account holder had a fraudulent intention to withdraw cash in violation of the account transfer contract from the time of the account transfer contract. However, since the target judgment has been sentenced, in general cases where the account holder is not willing to cheat when signing an account transfer contract, the target judgment is stated as a reference precedent, so it is necessary to discuss whether such a crime of embezzlement can be established. The target judgment can be criticized in the following respects. First of all, it is not correct in that it was trying to regulate what should be regulated as fraudulent as embezzlement. Even if the prosecutor charged with embezzlement, the court should have requested a change of the indictment for fraud, and if the prosecutor had not complied with this request, he should have been acquitted of the crime of embezzlement. Secondly, the crime of embezzlement is denied by applying the "need to protect the consignment relationship" standard in determining the constituent requirements of embezzlement against the account transferee, but this standard should be replaced by "need to protect ownership". Lastly, it is not correct in that it deals with the same purpose as the "error remittance case" and the "case of withdrawal of money from voice phishing-related account providers." This is because the review of embezzlement in the case of account holder's money withdrawal related to voice phishing must be reviewed in terms of the three-party embezzlement structure. Looking at the structure of the three-party embezzlement, if the account holder does not acknowledge the intention of the voice phishing fraud, it is considered that the crime of embezzlement with the account transferee as the consignor and the remitter as the victim can be recognized.