[edit] Supreme Court Decision 2002Do2134 delivered on July 12, 2002 [Special Larceny·Fraud·Violation of the Specialized Credit Financial Business Act·Larceny·Forgery of Private Document·Uttering of Forged Private Document·Embezzlements of Lost Property]
【Main Issues】
[1] The criminal liability of a defendant who withdrew cash from an automated teller machine(hereinafter 'ATM') by using a credit card that had been issued under false representation of the identity of another person (=larceny)
[2] Whether withdrawing cash from an ATM by using a credit card that was issued under false representation of the identity of another person constitutes Fraudulent Use of Computer etc. which is provided in Article 347-2 of the Criminal Code (negative)
[3] An appellate court's discretion with regard to including detention days during the appellate process in the calculation of the original sentence
[4] Whether an appellate court should address the facts of offences, the summary of evidence, and applied statutes in the judgment where it does not reverse the trial court's non-guilty judgment, finding him not guilty (negative)
[5] The requirements for a court to find different facts from those charged in indictments without prosecutor's changing it and whether changing indictments is needed to correct obvious mistakes in writing(negative)
[6] Degree of proof of judicial documents
【Summary of Decision】
[1] Where the defendant was issued a credit card under false representation of another and get cash loan(so called 'cash service') from an ATM by falsely using the card, he takes criminal liability of larceny in that he obtained the control of cash without consent by and against the will of the ATM manager; although a credit card company, deceived by the defendant, issued the card under the name of another and ostensibly allowed him to get cash loan by inserting the card and inputting pin number he chose, its intent, implicit as well as explicit, lies in authorizing not the defendant but another regarding the card.
[2] Since the object of Fraudulent Use of Computer, etc., as provided in Article 347-2 of the Criminal Code, is limited to the 'pecuniary benefit' not 'real property', withdrawing cash from an ATM by using a credit card that was issued under false representation of the identity of another does not constitute Fraudulent Use of Computer etc. in violation of this Article.
[3] Where only a defendant appeals and an appellate court reverses trial court's judgment, it has no discretion to reduce the number of detention days prior to a trial court's sentencing which was already included in the term of imprisonment imposed by a trial court, according to the principle that an appellate court shall not make a disadvantageous judgment in case the defendant is the only one who appeals; On the contrary, where an appellate court affirms trial court's judgment or dismiss defendant's appeal, it has discretion to decide how many detention days during the appellate process to be included in the term of imprisonment imposed by an trial court.
[4] Article 369 of the Criminal Procedure Code does not oblige appellate court to address the facts of offences, the summary of evidence, and applied statutes other than judgments on the issues raised by appellant, except where the appellate court reverses and find defendant guilty.
[5] Notwithstanding 'no adjudication without prosecution', a court can find different facts of offence from those charged in indictments without prosecutor's changing them as far as basic facts are identical and such finding does not violate defendants' substantial interest, not to mention correcting obvious mistakes in writing.
[6] Except where there is a mistake in writing of judicial documents, they are the only proof to prove what was going in the trial proceedings and their probative value is so absolute that counter-proof is not allowed.
【Reference Provisions】 [1] Article 329 of the Criminal Act / [2] Article 347-2 of the Criminal Act / [3] Article 57 of the Criminal Act/Article 482 of the Criminal Procedure Act / [4] Article 369 of the Criminal Procedure Act / [5] Article 254 of the Criminal Procedure Act, Article 298 of the Criminal Procedure Act / [6] Article 56 of the Criminal Procedure Act
Article 329 of the Criminal Act (Larceny) A person who steals another's property shall be punished by imprisonment for not more than six years or by a fine not exceeding ten million won.
Article 347-2 of the Criminal Act (Fraudulent Use of Computer etc.) Any person who acquires any benefits to property or has a third person acquire them, by making any data processed after inputting a false information or improper order, or inputting or altering the data without any authority into the data processor, such as computer, etc., shall be punished by imprisonment for not more than ten years, or a fine not exceeding twenty million won.
Article 57 of the Criminal Act (Inclusion of Number of Detention Days before Delivery of Sentence) (1) The number of detention days before delivery of sentence shall be included in whole or in part in imprisonment, or imprisonment without labor, or lockup at workhouse with respect to a fine or minor fine, or confinement.
(2) In the case of the preceding paragraph, one detention day shall be reckoned as one day of imprisonment, or imprisonment without labor, or lockup at workhouse with respect to a fine or minor fine, or confinement.
Article 482 of the Criminal Procedure Act (inclusion of detention days during the appellate process in the calculation of the original sentence) (1) The whole number of detention days during the appellate process shall be included in the calculation of the original sentence, in the following items:
1. In the case where appeal has been made by a public prosecutor
2. In the case where appeal has been made by a defendant or a person other than a defendant, and the judgment of the court below is reversed.
(2) For the purpose of calculation under paragraph (1), one detention day during the appellate process shall be counted as the original sentence.
(3) Detention days after the appellate court reversed the judgment of the court below shall be included in the calculation in the same way as detention days during the appellate process.
Article 369 of the Criminal Procedure Act (contents of appellate court's judgment) An appellate court shall state the reasoning of judgment on the grounds for appeal in the text of judgment and can omit the same facts and summary of evidences as stated in the court below judgment.
Article 254 of the Criminal Procedure Act (How to prosecute and an indictment) (1) The prosecution shall be made by filing a written indictment with a competent court.
(2) Copies as many as the number of defendants shall be annexed to the written indictment.
(3) A written indictment shall contain the following matters:
1. names of defendants and other by which the defendants can be identified
2. name of crime
3. facts constituting the crime charged
4. applicable provisions of acts.
(4) Facts constituting the crime charged shall be stated clearly by specifying time and date, place and method of crime.
(5) Several separate charges or several applicable provisions of acts may be stated conjunctively or alternatively.
Article 298 of the Criminal Procedure Act (Changes in Indictment) (1) The public prosecutor may, with permission of the court, add, delete or change charges or applicable provisions of acts in the indictment as long as the identity of the charges shall not be disturbed.
(2) The court shall request the prosecutor to add, delete or change charges or applicable provisions of acts when it is reasonable considering the trial proceedings.
(3) When charges or applicable provisions of Acts have been added, deleted or changed, the court shall promptly notify it to the defendant or his defense counsel.
(4) In case the court is afraid that the addition, deletion or change of charges or applicable provisions of acts in the indictment under the preceding three paragraphs may disadvantage the defendant, the court may, ex officio or upon request of the defendant or defense counsel, adjourn the trial for a period necessary for the defense to prepare his trial.
Article 56 of the Criminal Procedure Act (Degree of proof of Judicial Documents) Proceedings at public hearing can be proved only by judicial document if they are written in the judicial document.
【Reference Cases】 [1] Supreme Court Decision 95Do997 delivered on July 28, 1995 (Gong1995Ha, 3034), Supreme Court Decision 95Do2466 delivered on April 9, 1996 (Gong1996Sang, 1475) / [3] Supreme Court Decision 83Do1470 delivered on July 26, 1983 (Gong1983, 1386), Supreme Court Decision 83Do2528 delivered on November 22, 1983 (Gong1984, 134), Supreme Court Decision 87Do691, 87Gamdo63 delivered on June 9, 1987 (Gong1987, 1164), Supreme Court Decision 95Do2500 delivered on January 23, 1996 (Gong1996Sang, 708) / [4] Supreme Court Decision 82Do2642, 82Gamdo557 delivered on December 28, 1982 (Gong1983, 398), Supreme Court Decision 92Do371 delivered on July 28, 1992 (Gong1992, 2613) / [5] Supreme Court Decision 88Do592 delivered on June 14, 1988 (Gong1988, 1048), Supreme Court Decision 87Do1801 delivered on May 9, 1989 (Gong1989, 933), Supreme Court Decision 89Do1694 delivered on May 25, 1990 (Gong 1990, 1407), Supreme Court Decision 94Do1888 delivered on December 9, 1994 (Gong1995Sang, 535), Supreme Court Decision 94Do2527 delivered on December 27, 1994 (Gong1995Sang 743), Supreme Court Decision 96Do197 delivered on May 31, 1996 (Gong1996Ha, 2087), Supreme Court Full Bench Decision 96Do1922 delivered on April 15, 1999 (Gong1999Sang, 970), Supreme Court Decision 99Do2530 delivered on November 9, 1999(Gong1999Ha, 2545), Supreme Court Decision 98Do4558 delivered on July 28, 2000 (Gong2000Ha, 1958), Supreme Court Decision 2000Do5358 delivered on February 9, 2001 (Gong2001Sang, 693), Supreme Court Decision 2001Do970 delivered on March 15, 2002 (Gong2002Sang, 935) / [6] Supreme Court Decision 82Do571 delivered on October 25, 1983 (Gong1983, 1776), Supreme Court Decision 93Do2505 delivered on November 26, 1993 (Gong1994Sang, 228), Supreme Court Decision 95Do826 delivered on June 13, 1995 (Gong1995Ha, 2433), Supreme Court Decision 96Do173 delivered on April 9, 1996 (Gong1998Sang, 1477), Supreme Decision 96Do1252 delivered on September 10, 1996 (Gong1996Ha, 3088), Supreme Court Decision 98Do2890 delivered on December 22, 1998 (Gong1999Sang, 275), Supreme Court Decision 2000Do1908, 2000Gamdo62 delivered on July 4, 2000 (Gong2000Ha, 1855)
【Defendant】 Defendant
【Appellant】 Defendant
【Defense Counsel】 Attorney Kim Kyoo-bok.
【Court of First Instance】 Seoul District Court Judgment 2001Godan4582 delivered on December 31, 2001
【Court of Second Instance】 Seoul District Court Judgment 2002No972 delivered on April 19, 2002
【Disposition】 The appeal shall be dismissed. Seventy days served after the appeal shall be included in the calculation of the original sentence.
【Reasoning】 The grounds for the appeal by the defendant and his counsel are examined as follows.
1. On the first ground for appeal
In review of the records, we find the court below judgment to uphold the court of first instance which found the defendant guilty as charged on each count is appropriate, and also find that there is no violation of the evidence rules in confirming the facts constituting the offense.
The appeal pointing out this issue cannot be accepted.
2. On the second ground for appeal
Where the defendant was issued a credit card under false representation of another and get cash loan(so called 'cash service') from an ATM by falsely using the card, he takes criminal liability of larceny in that he obtained the control of cash without consent by and against the will of the ATM manager; Although a credit card company, deceived by the defendant, issued the card under the name of another and ostensibly allowed him to get cash loan by inserting the card and inputting pin number he chose, its intent implicit as well as explicit lies in authorizing not the defendant but another regarding the card. (See Supreme Court Decision 95Do2466 delivered on April 6, 1996.)
Meanwhile, since the object of Fraudulent Use of Computer, etc., as provided in Article 347-2 of the Criminal Code, is limited to the 'pecuniary benefit' not 'real property', withdrawing cash from an ATM by using a credit card that was issued under false representation of the identity of another does not constitute Fraudulent Use of Computer etc. in violation of this Article.
Therefore, the court below didn't err in ruling the 5-Ra, 5-Cha, 5-Ta of the charged counts constitute larceny or special larceny or make any unlawful application of the law.
The appeal pointing out this issue cannot be accepted.
3. On the third ground for appeal
Where only a defendant appeals and an appellate court reverses trial court's judgment, it has no discretion to reduce the number of detention days prior to a trial court's sentencing which was already included in the term of imprisonment imposed by a trial court, according to the principle that an appellate court shall not make a disadvantageous judgment in case the defendant is the only one who appeals; On the contrary, where an appellate court affirms trial court's judgment or dismiss defendant's appeal, it has discretion to decide how many detention days during the appellate process to be included in the term of imprisonment imposed by an trial court. (See Supreme Court Decision 83Do1470 delivered on July 26, 1983; Supreme Court Decision 95Do2500 delivered on January 23, 1996.)
Therefore, the court below, as an appellate court, didn't err in including 70 days, a part of the detention days after the appeal, in the original sentence.
The appeal pointing out this issue cannot be accepted.
4. On the fourth ground for appeal
Article 369 of the Criminal Procedure Code does not oblige an appellate court to address the facts of offences, the summary of evidence, and applied statutes other than judgments on the issues raised by appellant, except where an appellate court reverses and find defendant guilty. (see Supreme Court Decision 82Do2642, 82GamDo557 delivered on the December 28, 1982.)
Therefore, the court below's judgment that dismissed the defendant's appeal by stating only that there was no ground for the appeal is proper and legal.
The appeal pointing out this issue cannot be accepted.
5. On the fifth ground for appeal
Notwithstanding 'no adjudication without prosecution', a court can find different facts of offence from those charged in indictments without prosecutor's changing them as far as both basic facts are identical and such finding does not violate defendants' substantial interest, not to mention correcting obvious mistakes in writing. (See Supreme Court Decision 2001Do970 delivered on March 15, 2002.)
The record indicated that the name on the (Lotte) Department Store card was 'Park Joo-sik' in the counts 6-Na (1) and (2), but the name should have been 'Bang Chun-kwan' as on the card. Such mistake is obvious considering the time and place of the crime, and the property obtained by fraud etc. and comparing the count 6-Ga. The court below's correcting 'Park Joo-sik' to 'Bang Chun-kwan' is no more than to correct the misinformation in the indictment. It didn't cause any substantial disadvantage to the defendant's right to defend, so there is no violation of the principle of "no adjudication without prosecution."
The appeal pointing out this issue cannot be accepted.
6. On the sixth ground for appeal
Except where there is a mistake in writing of judicial documents, they are the only proof to prove what was going in the trial proceedings and their probative value is so absolute that counter-proof is not allowed. (See Supreme Court Decision 96Do173 delivered on April 9, 1996.)
In light of records, the judicial documents contain the following facts: On the first hearing day, the presiding justice informed the defendant of his right to remain silent. On the third hearing day, oral proceedings were concluded after the defense counsel's last statement of defense and the defendant's last statement. On the sentencing day, the presiding justice, addressing the judgment, informed the parties of the due date to file a final appeal to the Supreme Court, the court to submit a written appeal, and the court to review the appeal. And there is no evidence to show these documents was written by mistake.
Therefore, the appeal disputing the contents of the judicial documents cannot be accepted.
7. Conclusion
Therefore, the appeal shall be dismissed and 70 days served after the appeal shall be included in the calculation of the original sentence. This decision is delivered with the assent of all Justices who reviewed the appeal.
Justices Yoon Jae-sik (Presiding Justice)
Song Jin-hun (Justice in charge)
Byun Jae-seung
Lee Kyu-hong
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