대포통장에서의 현금인출과 전기통신금융사기죄의 성립여부- 대법원 2016. 2. 19. 선고 2015도15101 전원합의체 판결 -

초록

This paper is a case review on the Korean Supreme Court’s Criminal Case sentenced on 19. Feb. 2016, the number of which is 2015도15101. The contents of this paper is as follows; I. The Outline of the Case 1. The Fact Relevance 2. The Summary of the Majority Opinion and the Dissenting Opinion II. The Review 1. The Issue of the Case 2. The Critics against the Dissenting Opinion 3. The Examination of the Theoretical Reviews 4. Conclusion III. The Problems from the Legislative Pespective The issue of this case is that the first clause Article 15-2 of ‘The SPECIAL ACT ON REFUND OF AMOUNT OF DAMAGE CAUSED BY TELECOMMUNICATIONS BANK FRAUD’ can be applied to the defendant who withdraws the cash from the ATM which was sent by the victims of fraud to the nominal bank account. While the majority opinion takes a contrary position on the issue, the dissenting opinion is favorable to the issue. Considering the general principles of the criminal law hermeneutics such as ‘nulla poena sine lege’ or the prohibition of the analogical interpretation, the majority opinion is more persuasive than the dissenting opinion.

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