The defendant in this case withdrew 50,000 Won from a cash dispenser by using a cash card given by the card owner, who asked the defendant to withdraw 20,000 Won. The defendant gave 20,000 Won to the card owner, but took 30,000 Won for himself.
The prosecutor accused the defendant of committing "fraud by using a computer" in Article 347-1 of the Penal Code, but the trial court held him not guilty in that the object of "fraud by using a computer" was limited to "property interest" different from "property." Appealing to the higher court, the prosecutor accused the defendant of committing "theft" in Article 329 of the Penal Code. However, the appeal court held him not guilty in that a cash dispenser was supposed to give cash to a cash card user if provided with a correct password; the bank, the occupier of the cash dispenser, could not be considered to have an intention of giving cash to a card user after reviewing the scope of the entrust between the card owner and the card user; therefore, the defendant did not withdraw cash against the intention of the bank.
After reviewing the case, the Supreme Court held the defendant committed "fraud by using a computer" in Article 347-1 of the Penal Code, providing when the defendant withdrew 50,000 Won, he did not commit "theft" while he acquired "property interest," which is 20,000 Won.
This article reviews legal dogmatic issues of this case. First, it compares this new decision by the Supreme Court with its previous decisions where it held the defendant committed "theft" in that he withdrew cash from a cash dispenser by using a cash card without any entrust from the card owner. Second, it analyzes two important aspects of the case: whether the defendant in this case withdrew cash against the intention of the bank or not; why 20,000 Won in this case should be interpreted as "property interest," not "property."

I. 들어가는 말
 Ⅱ. 사건의 개요와 법원의 판단
  1. 사건의 개요
  2. 법원의 판단
 Ⅲ. 타인명의 신용카드․현금카드를 부정사용한 현금인출에 대한 기존 판례및 학설 검토
  1. 판례의 입장―절도죄설
  2. 학설의 태도
 Ⅳ. 대상판례의 해석―위임범위를 초과한 타인의 현금카드 사용 현금인출
  1. 기존 판례와 모순되는가?
  2. 모순이 아니라면 대상판결은 어떠한 함의를 갖는 것인가?
  3. 소결
 Ⅴ. 맺음말
 

• 曺 國(서울대학교 법과대학) | Kuk Cho (Seoul National University College of Law)