위임금액을 초과한 현금인출의 형사책임 - 컴퓨터등사용사기죄의 성립여부(대법원 2006.3.24.선고 2005도3516판결) -
Computerfraud or Theft?
안성조, 서상문
초록
According to the decision of Korean Supreme Court, in the case that a man who was authorized to withdraw money from a cash dispenser in fact overdrew money, he would be convicted not of a theft but of a computerfraud. The reason is that firstly the overdrawn money is not property but profit of fortune, and secondly the Korean Penal Code Art.347-2(computerfraud) prohibits only infringement of the profit of fortune whereas the Code Art.329(theft) prohibits only infringement of the property. There are many who raise a question why overdrawn money is not property but profit of fortune. This is crucial issue in order to understand the decision in question. Although several legal scholars argues that the money overdrawn from a cash dispenser is property as well as the money withdrawn from a cash dispenser by a thief, however there is a very important difference between them. When a thief withdraw money with a card, he would possess it all immediately. But when a man who was authorized to withdraw money from a cash dispenser overdrew money, he would possess the overdrawn rates of the money not immediately but after giving back the rest of the money. Therefore, the overdrawn rates of money should be treated as just potential profit, not real property. From these view, we can conjecture that the Court regarded the overdrawn rates of the money not as property but as profit of fortune. The decision is right in that the man was convicted not of a theft but of a computerfraud within our criminal law system