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강도죄와 절도죄의 경합 - 현금카드 강취 후 현금자동지급기에서 현금을 인출한 행위- KCI 등재
Concurrence of Robbery with Theft - The act of forcibly taking a cash card and withdrawing money from the ATM -
The accused took a cash card from its owner and threatened to harm the latter if he would not divulge the password to him. He then withdrew money from an ATM several times over. The crime of the accused consists of the following three steps: 1) forcibly taking a cash card;
1) forcibly taking a cash card;
2) threatening to harm the owner of the cash card if he would not divulge the password to him; and
3) inserting the cash card in the ATM card slot and entering the password to withdraw the money in the account.
If the crime of the accused that was described above were subdivided into the above three steps, the following conclusions would be established: (1) forcibly taking a cash card falls within the crime of robbery; (2) threatening to harm the holder of a cash card if he does not divulge the password to the accused falls within the crime of coercion; and (3) inserting the card in the ATM card slot and entering the password to withdraw cash from the account falls within the crime of theft. There is no objection that the act of forcibly extracting a password from the owner of the cash card in (2) is included in the act of forcibly taking the cash card, thus establishing the crime of robbery. However, whether the crime of theft in (3) can be considered distinct or separate from the crime of robbery in (1) is the core issue of this case.
The Supreme Court adjudged that withdrawing cash from an ATM using someone else’s cash card that was forcibly taken from the latter consists of the crime of theft and can be considered separate or distinct from the crime of robbery because the accused threatened to harm the victim if he would not cooperate. As such, the resistance of the victim was repressed when his cash card was being forcibly taken from him. Therefore, the victim did not give his consent to the accused to withdraw money from his ATM account using his cash card. It is, however, thought of as inappropriate to completely separate such act of theft from the preceding act—the “improper acquisition of a cash card”—even though the succeeding act, withdrawing cash from an ATM, falls within the crime of theft. Considering the characteristics of a cash card, it can be said that the act of forcibly taking a cash card should be considered a means or method of withdrawing cash from an ATM.
[사건의 개요]
[원심판결]
[대법원 판결요지]
[비교판례1] 대법원 1996.9.20.선고, 95도1728판결
[비교판례2] 대법원 2005.9.30.선고, 2005도5869판결
[비교판례3] 대법원 1996.7.12.선고, 96도1181판결
[평석]
I. 판례 비교분석
II. 현금자동지급기 현금인출행위의 절도죄 성립 여부
III. 카드강취행위와 현금인출행위의 포괄일죄 성부
IV. 결론
