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."

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.