[2] The meaning of "the purpose of causing any error in the management of business" as stated in the crime of fraud, electronic records, etc.

[3] In a case where a corporation establishes and operates a computer network system for the purpose of creating, processing, storing, and printing information by using an information processing device, such as a computer, whether the special media records, such as electronic records, which created, processed, stored, and output information by providing the above system, constitute a special media records such as electronic records of others, in relation to an officer or employee of the corporation (affirmative)

[4] In the case of “alongation” of electronic records as referred to in the crime of fraud of public electronic records, whether it also includes cases where a person, who is not authorized to participate in the creation of electronic records in relation to the establishment, operator, etc. of a system established and operated by an electronic method, prepares electronic records or enters the unit information necessary for the creation of electronic records, other than cases where a person who is authorized to enter information on a unit within the scope of his/her duties by abusing his/her authority and enters false information by abusing his/her authority, thereby creating electronic records contrary to the intent of the installer, operator, etc. of the system (affirmative)

[2] The term "purpose of processing the affairs" as referred to in Article 232-2 of the Criminal Act refers to erroneous processing of affairs by an individual or corporation, which is the main agent operating a system established and installed for the purpose of creating, processing, storing, and printing information by electronic means by using a forged or modified electronic records.

[3] Where a corporation establishes and operates a computer network system by using an information processing device, such as a computer, for the purpose of creating, processing, storing, and printing information in an electronic form, the entity that establishes and operates the said system is a corporation. The executive officers and employees of the corporation are merely the persons entrusted by the corporation with the authority to create, process, store, and output information and perform the relevant duties. Therefore, the special media records, such as electronic records, which form, process, store, and output information, which are provided to the computer network system established and operated by the corporation, constitute special media records such as electronic records

[4] [Majority Opinion] The crime of writing electronic records, etc. under Article 227-2 of the Criminal Act is established when a public official or a corporation falsifies or alters special records, such as electronic records, for the purpose of causing an error in the management of affairs. The Supreme Court held that the electronic records, as defined in Article 227-2 of the Criminal Act, are not in itself a physical substance, and thus cannot be viewed or read without a separate indication or output device, and that various people’s intentions or acts are opened in the course of creation, and that additional information is created and sent automatically combined with existing information through a program. From the perspective of the process of use, it does not independently use it with objective and objective meaning, but it does not perform a function of proof planned by the private person or a corporation for the purpose of creating, processing, storing, and printing information through an electronic method, and thus, the Supreme Court held that the person who does not have authority to create and operate electronic records in relation to the subject of installation and operation of the electronic records as well as the person who establishes and operates the electronic records, as defined in Article 27 of the Criminal Act, applies to the following individual information:

(A) The purpose of legal interpretation ought to be to find a concrete feasibility within the extent that does not undermine legal stability. Furthermore, as far as possible, a systematic and logical interpretation that considers the legislative intent and purpose of the law, history of the enactment and amendment, harmony with the entire legal order, relationship with other Acts and subordinate statutes should be made appropriate to meet the request of legal interpretation. Penal provisions should be strictly interpreted and applied in accordance with the language and text, and they shall not be extensively interpreted or analogical interpretation to the disadvantage of the defendant. However, systematic interpretation that clearly states the logical meaning of the text in consideration of the legislative intent and purpose of the provision within the scope of possible meaning does not violate the principle of no punishment without law.

(B) In light of the name of the crime of document and electronic records stipulated in Chapter 20 of the Criminal Act and the crime of the crime of electronic records, the general public is easy to accept as the word “facing” as the word “facing” in the “facing” or “facing” only in the “facing” rather than accepting the same meaning as “facing” as “facing”, or as the word “facing” in the “facing” instead of “facing”. The concept “facing” in the Criminal Act does not define it. The meaning of “facing” in the Criminal Act does not mean that the Criminal Act does not define it, and it is difficult to derive an appropriate interpretation as a requirement for the formation of crime, and ultimately, it is bound to interpret in a systematic manner in relation to the constituent elements of another crime. Therefore, even if a person who has the authority to include “facing” as defined in Article 232-2 of the Criminal Act has an interpretation that person’s provision or provision against the intent to establish and operate an electronic records.

(C) For the preparation, modification, perusal, deletion, etc. of electronic records (hereinafter “preparation, etc.”), a person who has undergone the procedure for identification requested by the system has the authority to prepare, etc. the relevant electronic records, barring special circumstances. However, the electronic records cannot be identified and indicated by specifying the person in charge of preparation, and not only are various people’s intentions or actions are opened in the process of creation, but also a new electronic record is created by automatically combining the information with the existing information by the information processing device, such as computer, etc., and thus, it is difficult to present the concept of “the same person in charge of document forgery” as in the crime of document forgery. In comparison with the characteristics of such electronic records, in comparison with the crime of fabrication of private documents, the two crimes are different from each other. Considering these circumstances, the meaning of “the document forgery” in the private electronic records as defined in Article 232-2 of the Criminal Act should not be interpreted to the same extent as “the document forgery is established for the purpose of exercise by a person without the authority to prepare it.”

(D) Considering the legislative intent and legal interest and protection of the amended Criminal Act that was promulgated by Act No. 5057 of Dec. 29, 1995 and enforced from July 1, 1996, it is difficult to accept as a legal interpretation that excludes the act of creating electronic records against the intent of the person who installs and operates the system by abusing his/her authority and inputting false information with regard to the preparation of special media records, such as records inevitably accompanied in the course of using the computer and other computer network system.

(E) The term “public electronic records” and “private electronic records” have to be equally interpreted and applied, barring special circumstances, such as where there exist other provisions in the same Act and subordinate statutes. However, the term of “public electronic records” and “private electronic records” are the same as the subject of the act, and both of the two crimes are prescribed in Chapter 20 (Crime concerning Documents) of the Criminal Act. Furthermore, in the case of private documents, the Criminal Act exceptionally punishs forgery (Article 231), as well as forgery (Article 225). In the case of public documents, there is a separate penal provision for forgery (Article 227). However, if an authorized person is deemed to correspond to the crime of fabrication of documents and electronic records, and thus, the act of creating prior records against the intent of the subject of installation and operation of the system by abusing his/her authority so that it can not be punished as a crime of fabrication of documents and electronic records, it should be interpreted that the act of establishing and operating the system is more than that of the subject of installation and operation of the system, and thus, it would be unreasonable.

(F) In order to establish the crime of forgery of electronic records, etc., “the purpose to mislead the management of affairs” and “special media records, such as electronic records of another person with respect to rights, obligations, or certification of facts,” other than “the purpose to mislead the management of affairs,” should meet the requisite. According to the legal principles of judicial precedents concerning electronic records as prescribed in Article 232-2 of the Criminal Act and “the purpose to mislead the management of affairs,” the relevant electronic records are used in the system, and even if they are not used in the system, they do not constitute “the purpose to mislead the management of affairs,” or even if they are contrary to the intent of the person who installs and operates the said system, they do not constitute the crime of forgery of electronic records. Therefore, even if a person with authority in the concept of “competation” as prescribed in Article 232-2 of the Criminal Act includes any act of creating electronic records contrary to the intention of the person who installs and operates the system by inputting false information by

(G) The Korean criminal law and the Japanese criminal law are similar to the system in relation to the document crime. In the event that a person with the authority to enter into a private electronic book referred to in Article 161-2(1) of the Japanese criminal law includes a case where he or she enters a false electronic record by abusing his or her authority and creates a false electronic record, the system with the document crime is also identical. Nevertheless, according to the legislative data at the time of establishment of Article 161-2 of the Japanese criminal law, “an act of entering a false data against the intent of the system installer by abusing his or her authority.” Such attitude in Japan is also referenced in interpreting the concept of “misappropriation” in Article 232-2 of the Criminal Act.

[Dissenting Opinion by Justice Lee Ki-taik, Justice Kim Jae-hyung, Justice Park Jung-hwa, Justice Ahn Jae-hwa, and Justice Noh Tae-ok] The purport of the Majority Opinion is that “electronic records, etc.” (hereinafter “electronic records, etc.”) include not only tangible forgery but also an abuse of authority, etc., but also forgery. This does not coincide with the prior meaning of “an electronic recording, etc.” and it is difficult to accept as it is difficult for the general public to predict in the criminal law system that strictly separates type forgery and intangible forgery. Specific reasons are as follows.

(A) The Constitution stipulates that a crime and punishment shall be prescribed by law to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority (Article 13(1) of the Constitution of the Republic of Korea). Acts that limit the fundamental rights of citizens or impose obligations on citizens must be clear, and in particular, the penal law must be clear enough to prevent state organs from exercising their authority. In other words, penal law requires that a person who has sound common sense and ordinary legal sentiment may clearly stipulate the elements of a crime so as to be unconstitutional inasmuch as a penal law that does not have the meaning and contents enough to determine one’s own act is contrary to the principle of clarity in the principle of no punishment without the law and thus, it should be in mind in order to interpret unclear regulations in accordance with the Constitution. Moreover, the interpretation of penal law must be strict, and the interpretation of a criminal law to the disadvantage of a defendant beyond the possible meaning of the text is not permitted in accordance with the prohibition of extended interpretation, which is the content of no punishment without the law.

There is no definition provision regarding “comforcing” in the Criminal Act of the Republic of Korea. In relation to electronic records, the term “comforcing” is not a common word used by the general public. Therefore, the general public cannot at all predict what meaning “comforcing” through the criminal law in which the term “comforcing” was used. Considering such circumstances, the concept of “comforcing” as prescribed in Article 232-2 of the Criminal Act ought to be systematically interpreted as related to “crime concerning documents” as prescribed in Chapter 20 of the Criminal Act, which is stipulated in the said provision, and in combination with the Constitution.

The Criminal Act provides that the form of an act of a type of document is forged or altered. The forgery or alteration of public and private electronic records is responding to the forgery, alteration and alteration of such provisions of the Criminal Act. In comparison with the crime of forging private documents (Article 231) and the crime of forging private documents (Article 232-2), the two crimes are identical in the form of the constituent elements and statutory punishment if the object of the act is not paper documents or electronic records are excluded from the difference depending on whether they are electronic records. In general, the meaning of the term “the forgery of special media records, such as electronic records,” which is not used in advance and ordinarily without any definition provision, is not known, and the meaning of the term “the forgery of special media records, such as electronic records,” which is not used in advance and ordinarily, can only be interpreted as being similar to the forgery of document.

As stated in the Majority Opinion, the attitude that regards the meaning of “discipheration” as a combination of the words “disciphering” and “ciphering” as the word “discipheration” in the above Article, as the context of responding to the provisions of the Criminal Act regarding documents, the structure of the Criminal Act distinguishinging the forgery of type and the fabrication of intangible, and the concept of the general public as to documents, shall not be accepted.

In the crime of aiding and abetting the recording of a person in advance, the term “the purpose of causing the execution of affairs” is to limit the subject of punishment rather than “the purpose of uttering” in the crime of forging a private document, which is an excessive subjective constituent element. However, to expand the scope of punishment by including false preparation in the “discipation” under Article 232-2 of the Criminal Act, not only contravenes the intent of the Criminal Act, but also contravenes the purport of the provision of excessive subjective constituent elements, and also is likely to undermine the legal stability of the general public depending on the expansion of the scope of punishment. In addition, the subjective constituent elements and objective constituent elements are different by means of proof, and thus, are not difficult to escape from suspicion of crime on the grounds that there

In light of the form and content of the constituent elements of the crime of fabrication of a private document, its statutory punishment, the attitude of the Criminal Act on the crime of fabrication of a private document, and the established concept of the general public, etc., the phrase “compacting” under Article 232-2 of the Criminal Act shall be construed as only the type forgery. This interpretation can be construed as a constitutional interpretation that removes possession of unconstitutionality based on uncertainty. However, even though there is no reasonable ground to regulate the forgery of a private document and the writing of a prior recording, unlike the forgery of a private document punishing only the forgery of a private document, the interpretation that, unlike the forgery of a private document punishing the forgery of a private document, it includes the forgery of a prior recording of a private document, including the forgery of a private document, is unfavorable to the defendant, and thus, it excessively expands the scope of punishment by expanding the meaning of the text without reasonable grounds. Therefore, it goes against the principle of no punishment without law, which is the principle of the criminal law.

(B) Even if the preparation of false electronic records, as stated in the Majority Opinion, is deemed to have been the legislative intent as stated in the Majority Opinion, the legislative intent is merely one of the several elements that ought to be considered in the interpretation of the law. Therefore, even if the court interprets the concept of “compact” differently from the legislative intent, it does not go beyond the interpretation of penal provisions. The role of the judicial branch is to declare what the law is, and the degree of resolving erroneous legislation through new legislation (e.g., the degree of solving the problem). It is not desirable to resolve the problem of legislation by expanding the scope of punishment through interpretation that creates a new meaning beyond the ordinary meaning of the language and text.

(C) An expanded interpretation of unclear regulations on the grounds that there is a gap in punishment for false preparation of electronic records is in violation of the principle of no punishment without the law. It is unreasonable to resolve the problem of whether to resolve through appropriate legislation if there is a need for punishment. In particular, even if accepting that the “compactation” as referred to in the electronic records should be interpreted in the same sense, it is difficult to agree that the punishment for forgery of electronic records needs to be imposed, and thus, it is difficult to accept the result of punishment for forgery of electronic records. The role of the judiciary is to protect an individual’s fundamental rights, and to regulate society by expanding and interpreting the punishment method for the reason that there is a need for punishment according to the present situation.

(D) In our criminal law, the attitude of committing an act relating to electronic records in the context of “compacting”, while the term is different in the Japanese criminal law from one another. Since the Japanese criminal law gives the meaning that an act of abusing authority by using the word “compacting” includes a forgery, and that it is an act of abusing authority by adding the word “dispacting” in front thereof, it can derive the interpretation of an abuse of authority in the text of the law itself. In light of the difference between the term “compacting” and the other, the concept of “compacting” cannot be interpreted as the same as that of the Japanese criminal law using the word “compacting”.

(E) The reason why our criminal law does not punish the forgery of a private document is to refrain from exercising the penal authority of the State to the maximum extent possible in the area of private autonomy, unlike public documents. Such attitude of the criminal law is also applicable to electronic records, not documents. In doing so, in addition to electronic records consistent with the truth, there may be many cases where electronic records, other than those consistent with the truth, are prepared, which contain false details that do not fit the truth in an inevitable situation. However, if it is interpreted that such electronic records constitute “a fraudulent act” regardless of who is the preparing authority, solely on the ground that they are prior records containing false information, an investigative agency may, even if evidence related to the original offense in the process of search and seizure is not discovered in the search and seizure, create a risk of abusing the private right by discovering a prior record containing false information and utilizing it for a separate investigation. In such cases, it can be easily anticipated that the management activities of a company may be diminished. Accordingly, interpreting the “a forged document” as referred to in Article 232-2 of the Criminal Act without changing the concept of forgery.

In short, the term "accomment" under Article 232-2 of the Criminal Act shall be interpreted to mean only where a person who is not entitled to participate in the creation of electronic records prepares electronic records or enters unit information necessary for the creation of electronic records.

(F) The Majority Opinion seems to have across the boundary of an unreasonable expansion interpretation of “compacting” by restricting the cases where a person subject to punishment for the false preparation of a prior record but abuse of authority. This may be viewed as an equitable attitude to alleviate the illegality of both the forgery of a type and the forgery of a type without punishment in a single term “compacting” in the crime of forgery of a prior record. However, the Criminal Act’s provision does not have sufficient grounds for deriving the interpretation of a false preparation of authority under the Criminal Act.

(G) Unlike representatives, the representative director of a corporation does not act on behalf of the company, but act on behalf of the company itself as a constituent part of the company. In this case, the company realizes the intent of the company decided through the decision-making body through its representative director, and the act of the representative director is immediately an act of the company, so it is difficult to present the representative director’s intent and act against the company’s intent. Therefore, even if the meaning of “comforcing” as referred to in the crime of aiding and abetting Records, it is difficult to view that the representative director’s input of false information in electronic records of the system established and operated by the company as an act based on the company’

1. As to the uttering of private electromagnetic records, etc.

A. Case summary and key issues

1) The summary of this part of the facts charged is as follows.

Defendant 1, as the representative director of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”), a company operating the virtual currency exchange, controlled the overall business of the company. Defendant 2 managed the company’s funds, etc. as the internal director of Nonindicted Co. 1.

On January 5, 2018, the Defendants opened a virtual currency exchange (hereinafter “instant exchange”) on the Internet with the trade name of Nonindicted Company 1 (hereinafter “instant exchange”), and issued trading orders by many members using the virtual currency trading system established and established by Nonindicted Company 1 and used in the said exchange (hereinafter “instant trading system”), and subsequently, opened the borrowed name account under the said trading system, and opened the borrowed name account in Korean won and virtual currency points (hereinafter “original currency point, etc.”) as if they were holding the borrowed name account, and did not own the borrowed name account, and falsely entered the Korean won point and virtual currency points (hereinafter “original currency point, etc.”) as if they were in possession of the said borrowed name account, and concluded trading orders with respect to the foreign currency points, etc., which were falsely entered into the said automatic order account as seen above.

A) On January 5, 2018, immediately before the opening of the Exchange, at around 08:18, the Defendants connected to the management account of the instant transaction system in order to create the borrowed name account, won point, etc. necessary for the operation of the “ robot Program,” and created five member ID (member ID 1 omitted) and five borrowed name account (ID) composed of Defendant 1, etc., the name of the account name, “Defendant 1,” etc., and thereafter, entered information on the quantity of won points, etc. in the said borrowed name account into the said borrowed name account over 30 times in total, and exercised each of them by marking it on the said transaction system.

B) The Defendants: (a) using the borrowed name account created in the instant transaction system and the borrowed won point, etc. entered falsely with the borrowed name account; (b) thereby causing side effects, such as overworking in the system during the trading order; (c) partly supplement the “uture program” in order to alleviate such issues; (d) in order to create a lot of borrowed name account; and (e) bring about trading orders using Korean won points, etc.; (e) have access to the said manager’s account on January 19, 2018; and (e) have access to the said manager’s account on January 19, 2018; and (e) have newly created ten (10) the borrowed name account consisting of “non-party 2”, etc.; and (e) have entered the borrowed name account into the said name account 60 times in total by manipulating information on the quantity of Korean won points, etc. for each account; and (e) have exercised it by indicating it on the said

2) The lower court determined as follows.

The Defendants’ entry of won points, etc. into the borrowed name account, which is Nonindicted Company 1’s prior records, constitutes the entry of false information. This constitutes an act of creating electronic records against Nonindicted Company 1’s will, which is the establishment and operation entity of the said transaction system, by abusing his/her authority, and thus, constitutes the forgery of another’s electronic records on rights, obligations, or certification of facts.

3) The Defendants asserts as follows.

A) Since the holders of the borrowed name account have the right to claim the payment of Korean won points, etc. corresponding to the point of Korean won, etc. entered in the borrowed name account, the Korean won points, etc., which the Defendants entered into the borrowed name account does not constitute false information.

B) The Defendants prevented the market price manipulation by speculative power and entered won points, etc. into the borrowed name account for the stable operation of the Exchange. Therefore, the Defendants did not have any “the purpose of facilitating the management of affairs.”

C) Defendant 1 entered won points, etc. into the borrowed name account on the instant transaction system as the representative director of Nonindicted Company 1, and the said transaction system does not constitute electronic records of “other persons”.

D) Even if any information entered by a person who is authorized to receive information is false, it does not constitute “a fraudulent act” as provided in Article 232-2 of the Criminal Act, even if it is false.

B. Whether the information constitutes “false information”

1) The entry of false information into an electronic records system refers to a case where it is inconsistent with the input details and the truth and thus endangers the public credit of the electronic records (see, e.g., Supreme Court Decisions 2015Do1978, Jun. 11, 2015; 2015Do9010, Oct. 29, 2015).

2) Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts and circumstances.

A) Nonindicted Co. 1 established the instant transaction system connected to the Internet so that information on virtual currency transactions can be created, processed, stored, and output by electronic means and established the instant exchange. In the instant exchange, customers who wish to engage in virtual currency transactions must express their consent to the terms and conditions after entering the member information, including ID, real name, and password, as prescribed by the terms and conditions for the use of Nonindicted Co. 1, and subsequently customers may enter, withdraw, and trade virtual currency through the procedures for identification of identity via mobile phones. Meanwhile, if customers deposit Korean currency, etc. in the instant exchange account or electronic bank account (hereinafter “the instant exchange account, etc.”), the corresponding Korean won point, etc. is automatically created, and even if there is a manager of the said transaction system, the customer cannot participate in the creation of Korean currency points, etc., unless there is any inconsistency with Korean currency points, etc. indicated in the instant bank account, etc. corresponding to the actual deposit in the bank account, etc. by customers.

B) “The virtual currency Exchange website brokerage” established by Nonindicted Co. 1 Company by requesting Nonindicted Co. 3 to put points on a hand, is a pop-up shop with the content that “if the manager enters points, it is used only in the event of an emergency due to the function of inputting only when the details of transactions, computer details, etc. are inside.” However, there was no such urgent situation at the time when the Defendants entered won points, etc. into the next name account without actual deposit.

C) The customers of the instant exchange have the right to file a claim against Nonindicted Company 1 for the withdrawal of won currency, etc. corresponding to the point of won won, etc. indicated in their names. On the other hand, the holders of the next name account created by the Defendants did not have the right to file a claim for the withdrawal of won currency, etc. corresponding to the point of won won, etc. included in the relevant next name account with respect to Nonindicted Company 1, since they did not have deposited won, etc. in the relevant

3) Examining the above facts and circumstances in light of the legal principles as seen earlier, it is reasonable to view that the Defendants’ act of inputting won points, etc. into the borrowed name account even though they did not actually deposit the borrowed name account, etc. in the instant exchange account constitutes the act of inputting false information into the borrowed name account under the instant transaction system established and operated by Nonindicted Company 1.

C. Whether “the purpose of business management is to mislead the handling of affairs” is recognized

1) The term "purpose of causing the management of affairs" as referred to in Article 232-2 of the Criminal Act refers to erroneous management of affairs of an individual or corporation, which is the main agent operating a system established and installed for the purpose of creation, processing, storage, and output of information by electronic means by using a forged or modified electronic records (see Supreme Court Decision 2008Do938, Jun. 12, 2008).

2) Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts and circumstances.

A) Since customers who engage in virtual currency transactions in the instant exchange hold won points, etc. corresponding to the actual paid-in won, the transaction partner also made virtual currency transactions on the premise that they are the general public who deposited won currency, etc. in the instant bank account, etc. like their own.

B) During the instant transaction, there was a transaction made by the Defendants through a borrowed name account in which the Defendants deposited false won points, etc., but the general customers were unaware of such circumstances.

C) The primary interest of customers was whether it is possible to withdraw money by converting the won point, etc. to be held after the completion of the virtual currency transaction into actual won, etc. However, if the customer knew that the Korean won point, etc. corresponding to the won point, etc. in the instant exchange was not realized, and if the customer knew that the actual counterpart is the Defendants, the customer did not trust the instant exchange and did not engage in the virtual currency transaction in the said exchange.

D) Meanwhile, the instant exchange mainly made profits from customers’ acquisition of fees for virtual currency transactions. However, for the said reason, if the customers do not engage in virtual currency transactions in the instant exchange, it is evident that the profits of Nonindicted Company 1 arising from the operation of the instant exchange would have significantly decreased.

E) In addition, in a case where a customer files a claim for damages against Nonindicted Company 1 for a tort due to the Defendants’ act, Nonindicted Company 1 is ultimately liable for the liability therefrom. Moreover, if the Defendants enter won points, etc. into the borrowed name account without having access to the manager account of the instant transaction system, there was a possibility that the initial transaction system may cause unexpected trouble if they enter won points, etc. into the borrowed name account.

3) Examining the above facts and circumstances in light of the legal principles as seen earlier, it is reasonable to deem that the Defendants’ act goes against the purpose and purport of the operation of the instant transaction system, and thus, the Defendants’ act was committed with the intent to obstruct the management of Nonindicted Company 1

D. Whether the electronic records of “other person” constitute electronic records

1) Where a corporation establishes and operates a computer network system by using an information processing device, such as a computer, for the purpose of creating, processing, storing, and printing information in an electronic form, the entity that establishes and operates the said system is a corporation. The executive officers and employees of the corporation are merely the persons entrusted by the corporation with the authority to create, process, store, and output information and carry out the relevant duties. Therefore, the special media records, such as electronic records, which form, process, store, and output information through the information system established and operated by the corporation, constitute a special media record, such as electronic records, in relation

2) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, electronic records created, processed, stored, and output in the instant transaction system established and operated by Nonindicted Company 1 constitute electronic records of “other person” in relation to the Defendants, who are executives and employees of Nonindicted Company 1.

E. Whether the case constitutes “an intentional act”

1) The crime of writing electronic records, etc. under Article 227-2 of the Criminal Act is established when a public official or public office falsifies or alters special media records, such as electronic records, for the purpose of causing an error in the performance of business affairs. The Supreme Court held in Article 227-2 of the Criminal Act that the electronic records, which are defined as the object of writing, do not in itself have a physical substance, and thus cannot be seen or read without a separate indication or output device, and that there are many cases where additional input information, as well as multiple opinions or actions are opened in the course of creation, automatically combined with existing information through a program, does not constitute a new electronic records. Considering the process of use, it is not independently used with objective and objective meaning, but it is also intended to perform the function of proof in a system established and operated by an individual or corporation for the purpose of creating, processing, storing, and printing electronic records, and thus, it is also applicable to the case where a person who is not involved in the creation of electronic records, as well as the person who establishes and operates the electronic records, within the scope of 20.

A) As a matter of principle, since the law is a universal norm with the same binding force against many and unspecified persons, it is necessary to clarify the standard meaning of the law and ensure objective validity when interpreting it, and to maintain consistency with all the people as much as possible so as to avoid undermining legal stability. In addition, since positive law is established in consideration of a universal and typical matter, it is necessary to interpret that the law has a concrete validity so that it can be the most reasonable solution for a variety of issues that occur in the reality of society, namely, to the extent that it does not undermine legal stability. In short, the purpose of interpretation of the law must be to faithfully interpret the ordinary meaning of the text used in the law as far as possible. Furthermore, a systematic and logical interpretation that takes into account the legislative intent and purpose of the law, legislative and amendment history, harmony with the entire legal order, relationship with other statutes, etc. should be further adopted to ensure that the interpretation at the request of the interpretation of the law as seen earlier is reasonable (see Supreme Court Decision 2003Da8365, Apr. 23, 2009).

Criminal law should be strictly interpreted and applied in accordance with the language and text, and should not be extensively interpreted or analogical interpretation to the disadvantage of the defendant. However, systematic interpretation that clearly expresses the logical meaning of the language and text in consideration of the legislative intent and purpose, etc. within the scope of possible meaning of the language and text does not violate the principle of no punishment without law (see, e.g., Supreme Court Decisions 2010Do1388, Apr. 11, 2013; 2017Do10122, Dec. 7, 2017).

B) The Standard Dictionary of Korean Language of the National Institute of Korean Language defines “an act creating another person’s work similar thereto” or “an act creating and publishing one’s work without the consent of the copyright owner” as “an act of creating and publishing the same.” However, Chapter 20 (Offense as to Documents) of the Criminal Act provides in Article 225, the crime of forging public documents in Article 227, the crime of forging public document in Article 227-2, the crime of forging public document in Article 231, the crime of forging private document in Article 232-2, and the crime of forging private document in Article 232-2, and the crime of forging private document in Article 232-2, and thus, it is difficult for the general public to interpret the meaning of “an act of forging public documents” or “an act of forging public documents” in the same meaning as “an act of forging public documents” as “an act of preparing and operating the same meaning as “an act of forging public documents” as “an act of preparing false information” under the Criminal Act.

C) To ensure the smooth performance of duties by a system installer and operator, a system manager may prepare, modify, peruse, or delete electronic records (hereinafter “preparation, etc.”) by accessing the system within the scope of authority delegated by the system installer and operator to maintain and manage the system. On the contrary, a user may utilize information resources or make electronic records by accessing the system only to the extent permitted by the system, who uses the system provided by the system installer and operator.

Article 232-2 of the Criminal Act provides that the public credibility of the special media records, such as electronic records, is protected by the law. The public credibility of the electronic records to be protected by the above penal provision is not only where a person without authority takes part in the preparation, etc. of electronic records, but also where a person with authority enters false information by abusing his/her authority. Furthermore, even if a system manager is a system manager, it is sufficient to view that the legal interest to protect the above penal provision is infringed if he/she initials or abused his/her authority granted by the installer and operator of the system to prepare electronic records.

A person who has undergone the process of identification required by the system for the preparation, etc. of electronic records has the authority to prepare, etc. the relevant electronic records, barring special circumstances. However, the electronic records cannot be identified as the person in charge of preparation, and it is difficult to present the concept of the person in charge of document preparation as it creates a new electronic record by automatically combining the existing information with the information processed and processed by a computer or any other information processing device. In comparison with the characteristics of such electronic records, in comparison with the crime of fabrication of private electronic records, the two crimes are different from each other, such as the purpose, object, form of act, etc. of the crime. Considering these circumstances comprehensively, it is unnecessary to interpret the meaning of “discipation” in the crime of fabrication of private electronic records as provided by Article 232-2 of the Criminal Act where a person without the authority to prepare, prepares a document with the intent of exercising the right to use “discipation” in the name of another person.

D) On July 7, 1992, the Government submitted to the National Assembly the wholly amended Criminal Act in the form of the wholly amended Criminal Act, Article 309, and Article 315, which committed a crime of forgery or alteration of public electronic records. However, the wholly amended Criminal Act was repealed on December 2, 1995 on the grounds that there are many conflicting opinions during the amendment, and that there may be concerns over confusion in the whole amendment of the Criminal Act. However, the Chairman of the Legislation and Judiciary Committee of the National Assembly proposed the wholly amended Criminal Act in accordance with the changes in society on December 1, 1995, and written the wholly amended Criminal Act in the form of 300, stating “the wholly amended Criminal Act” and “the wholly amended Criminal Act in the form of 30,000,000,0000,0000,0000,0000,0000,000,0000,000,000,000.

Article 140(3) of the amended Criminal Act provides that “Any person who discovers the content of a special media record, such as sealed documents, drawing, or electronic records, with respect to his/her duties, by using technical means, shall be punished as null and void for indicating public duties,” and Article 314(2) of the same Act provides that “any person who interferes with another person’s business by destroying information processing devices, such as computers, or special media records, or entering false information or any other means, or causing interference with information processing, by using other means, is punished as interference with business.” Considering that such special media records are newly established under Article 316(2) of the Criminal Act and “any person who obtains access to any specific media records, such as electronic records, sealed, drawing, or electronic records, by using any new and technological means, which are inconsistent with the legislative intent of the Act, and thus, are also punished as a violation of confidentiality in the future by using any such special media records, as well as any person who obtains access to any new and economic device, such as electronic records, etc., in accordance with the amendment of the Criminal Act.

E) The terms in the same Act and subordinate statutes must be equally interpreted and applied unless there are special circumstances, such as other provisions in the Act and subordinate statutes (see Supreme Court Decision 2007Du20089, Dec. 24, 2009, etc.).

Article 227-2 of the Criminal Act provides that "a person who is authorized to input individual unit information within the scope of his/her duties and thereby creates electronic records contrary to the intent of the person who installs and operates the system by abusing his/her authority and inputtings false information within the scope of his/her duties (see, e.g., Supreme Court Decisions 2004Do6132, Jul. 27, 2007; 2007Do3798, Jul. 13, 201; 201Do20614, May 13, 2011; 201Do7169, etc.). The Supreme Court has consistently held that "a person who is authorized to input individual unit information within the scope of his/her duties is included in "an electronic records" as provided in Article 227-2 of the Criminal Act (see, e.g., Supreme Court Decisions 2004Do6132, Feb. 16, 2014>

Furthermore, in the case of private documents, the Criminal Act, when punishing only tangible forgery (Article 231) (Article 23), exceptionally punishs the intangible forgery (Article 233), while, in the case of public documents, separate penal regulations are imposed as well as the tangible forgery (Article 225). However, if it is interpreted that the act of creating prior records against the intent of the installer and operator of the system by abusing his/her authority and inputting false information by a person with authority in view of the crime corresponding to the crime of forging electronic documents is not punishable for the crime of forging electronic documents, it should be interpreted that the act of creating public records against the intent of the installer and operator of the system by inputting false information by abusing his/her authority can not be punished for the crime of forging electronic documents as prescribed in Article 227-2 of the Criminal Act. This also conforms with the Criminal Act, which imposes a punishment for preparing false public documents by a person with authority.

In particular, since the construction, installation, and operation of a computer network system requires high level of technologicality, expertise, and reliability, where false electronic records are prepared, the necessity for punishment is much larger than that of documents.

F) In order to establish the crime of forgery of electronic records, etc., “the purpose to mislead the management of affairs” and “the special media records, such as electronic records of another person with respect to rights, obligations, or certification of facts,” other than “the purpose to mislead the management of affairs,” should meet the requisite. According to the legal principles of the electronic records and cases concerning “the purpose to mislead the management of affairs,” as prescribed in Article 232-2 of the Criminal Act (see, e.g., Supreme Court Decisions 2004Do6132, supra; 2008Do938, etc.), if the relevant electronic records are not used in the system, or if there is no purpose to mislead the management of affairs against the will of the person who installs and operates the above system, the crime of forgery of electronic records is not established. Therefore, even if a person with authority to the concept of “adverting” as prescribed in Article 232-2 of the Criminal Act includes a false information by abusing his/her authority and thereby creating electronic records against the intent of the person who installs and operates the system, it is too broad to be deemed to violate the principle of no punishment.

G) Similar to the Korean criminal law, the Japanese criminal law punishing “a person who unlawfully prepares and distributes electronic records concerning rights, duties, or certification of facts to provide for the purpose of handling affairs of a person [person] with an intention to mislead the affairs of a person [person], punishing both forgerys (Article 155) and forgerys (Article 156) for public documents in the same manner as the Korean criminal law, and punishing only tangible forgerys (Article 159) as a matter of principle for private documents, and exceptionally punishing a doctor’s false diagnosis, etc. (Article 160). In other words, the Korean criminal law and the Japanese criminal law on document crimes are similar to the system, and there is also the same problem that the Japanese criminal law does not fit the system where a person who has the authority to engage in the “unlawful writing” includes the creation of false electronic records by abusing his/her authority to do so. However, according to Article 161-2 of the Japanese criminal law, a person who has the duty to enter data at the time of the creation of new data can also be construed as a person who has the duty to enter such data in accordance with the concept of false data.

2) Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts and circumstances.

A) Defendant 1 has the authority to access the management account as a manager of the instant transaction system. However, Defendant 1’s above authority as a manager of the said transaction system is merely a right to access only to the extent limited to the maintenance and management of the said transaction system in exceptional circumstances, such as where the Korean won point, etc. actually deposited in the instant bank account, etc. due to the error of the said transaction system, etc. is inconsistent with the Korean won point, etc., which is indicated in the account of customers. However, Defendant 1 entered the Korean won point, etc. into the next name account without actual deposit in order to make the appearance of virtual currency transactions in the instant exchange through the robot program, not to maintain and manage the said transaction system.

B) The customers wishing to trade virtual currency in the instant exchange may enter the instant exchange as prescribed by the terms and conditions for the use of Nonindicted Company 1 by entering its member information, including ID (e-mail address), real name, and password, and expressing their consent to the terms and conditions, etc., and then enter the instant exchange through a mobile phone, etc., and then make transactions or entry of virtual currency through a mobile phone, etc. In addition, if the customers deposit Korean currency, etc. to the instant bank account, etc., the corresponding Korean won point, etc. is automatically created. Even if the said transaction system is the manager of the said transaction system, the customers cannot participate in the creation of Korean won point, etc., unless there are exceptional cases, such as the difference between the Korean won point, etc. actually deposited to the instant bank account, and the Korean won point, etc. indicated in the said account. Nevertheless, the Defendants used the authority of Defendant 1 to access the management account as the manager of the said transaction system, thereby creating 15 points in total, and enter the Korean won account, etc. into the instant account.

C) The instant transaction system recognizes the point of won, etc. owned by each account. The Defendants entered won points, etc. into the borrowed-name account, other than the account in the name of Nonindicted Company 1. Even if the account holder did not have the right to request Nonindicted Company 1 to refund the actual won point, etc. in Korean currency, etc. because he did not actually deposit the Korean currency account, etc. in the instant exchange account, the account holder of the borrowed-name account came to have the right to request Nonindicted Company 1 to trade virtual currency, or to withdraw won, etc. corresponding to the Korean won point, etc. using the borrowed-name account in formality or the Korean won point, etc., in appearance. As a result, Nonindicted Company 1 was liable for risks therefrom if the account holder of the borrowed-name account trades virtual currency or makes a request for withdrawal using the Korean won point, etc. contrary to the intention of Nonindicted Company 1.

D) The holdings of each account under the instant transaction system are the result of virtual currency transactions by customers who have joined the instant exchange as members using won points, etc. corresponding to the won points deposited in the instant bank account, etc. The customer believed the sale and purchase price of the said virtual currency indicated in the said transaction system, and purchased and sold the said virtual currency, and the sale and purchase price is indicated as the current price on the transaction system. Therefore, doing virtual currency transactions by opening the instant trading system and entering the false won point, etc. in the instant transaction system would affect the sale and purchase price indicated in the said transaction system, and current price, etc. In such an act, the customer’s trust in the instant exchange is deprived.

3) Examining the above facts and circumstances in light of the legal principles as seen earlier, the Defendants’ act of entering won points, etc. into the next name account created in the instant transaction system without actually depositing won, etc. in the bank account, etc. in the instant exchange constitutes “an act of creating electronic records contrary to Nonindicted Company 1’s intent by abusing their authority in relation to Nonindicted Company 1, which established and operated the instant transaction system, by entering false information by abusing their authority.”

F. Sub-committee

For the reasons indicated in its holding, the lower court convicted the Defendants of the part concerning the use of private electromagnetic records, etc. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending relevant

2. As to the remainder

For the reasons indicated in its holding, the lower court convicted the Defendants of the charges other than the part not guilty in the judgment of the first instance among the charges against the Defendants, and the part concerning the foregoing writing, electronic records, and the electromagnetic records. Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the intent and timing of unlawful acquisition and acceptance of crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition. It is so decided as per Disposition by the assent of all participating Justices on the bench, except for a dissenting opinion by Justice Lee Ki-taik, Justice Kim Jae-hyung, Justice Park Jung-hwa, Justice Lee In-hwa, and Justice Noh Tae-ok with respect to the part concerning the use of private electromagnetic records, etc.

4. Dissenting Opinion by Justice Lee Ki-taik, Justice Kim Jae-hyung, Justice Park Jung-hwa, Justice Ahn Jae-sik, and Justice Noh Jeong-ok

(a) Concept of forgery as defined in the crime of fraud, electronic records, etc.;

The Majority Opinion argues that the term “electronic records, etc.” under Article 232-2 of the Criminal Act includes not only the case where a person, who is not entitled to participate in the creation of electronic records, prepares or enters unit information necessary for the creation of electronic records, but also the case where a person who is authorized by the installer and operator of an electronic system to enter information by abusing his/her authority, enters false information by abusing his/her authority.

The purport of the Majority Opinion is that the “compacting” of a prior recording includes not only tangible forgery but also an abuse of authority. This does not fit the prior meaning of the piece of “compacting” but also does not coincide with the prior meaning of the word “compacting”, and it is difficult to accept as it is difficult for the general public to expect in the criminal law system that strictly divides the forgery of type and the fabrication of intangible.

1) The Constitution stipulates that a crime and punishment shall be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority (Article 13(1) of the Constitution). Acts that limit fundamental rights of the people or impose duties on them must be clear, and in particular, the penal law should be clear above all in order to prevent state organs from arbitrarily exercising their authority. In other words, the penal law requires that the general public can predict what acts should be punished, and that the elements of the penal law should be clearly prescribed so that a decision on one’s act can be made accordingly.

Inasmuch as a penal provision that cannot be deemed unconstitutional because a person with a sound common sense and ordinary legal sentiment has the meaning and content to the extent sufficient to make a decision on his/her act is in violation of the principle of clarity in the principle of no crime without the law (see, e.g., Constitutional Court en banc Decision 2015Hun-Ga23, Nov. 24, 2016), it must be in mind in order to interpret an ambiguous provision in accordance with the Constitution. Furthermore, the interpretation of penal provision should be strict, and interpretation in the direction unfavorable to the defendant beyond the possible meaning of the language and text is not permitted pursuant to the prohibition of extended interpretation, which is the content of the principle of no punishment without the law (see Supreme Court Decision 2015Do17847, Mar. 10, 2016).

A) In a case where there is no definition provision on the terms used in the statute, in principle, it should be in accordance with the generally accepted meaning, such as prior definition. However, there is no definition provision on “comforcing” in the Korean criminal law.

The Standard Dictionary of Korean Language published by the National Institute of Korean Language defines “competing” as “an act that makes another person’s work similar,” or “an act that creates and publishes the same work equally without the consent of the copyright owner,” and does not have the meaning of “competing” in relation to electronic records. In addition, the term “competing” in relation to electronic records is not a common use of the general public. Therefore, the term “competing” cannot be entirely predicted as to what meaning “competing” is through the criminal law in which the term “competing” was used. Considering these circumstances, the concept of “competing” as prescribed in Article 232-2 of the Criminal Act ought to be systematically interpreted as related to “crimes relating to documents” as prescribed in Chapter 20 of the Criminal Act, which is stipulated in the said provision, and systematically and constitutionally combined.

B) Article 225 of the Criminal Act punishes a person who has no authority to prepare an official document in accordance with Article 225, i.e., forgery of a type, and punishs a person who has no authority to prepare an official document in accordance with Article 227, i.e., forgery of a type., forgery of a type. On the other hand, in principle, a person who has no authority to prepare an official document in Article 231 is punished for forgery of a type, i.e., forgery of a type., forgery of a type, under Article 233, exceptionally

The Supreme Court has clarified the position that the offense of forging a private document is not established against the general private document (Supreme Court Decision 73Da2008 Decided June 25, 1974, Supreme Court Decision 85Do1732 Decided October 22, 1985, Supreme Court Decision 2002Do3738 Decided November 8, 2002, etc.). Accordingly, the general public, who is the offender, has a firm concept that the type of forgery and the forgery of a private document, are distinguished from the type of the private document, and that the private document, unlike the public document, is punished only for the case of a private document.

The Criminal Act provides that the form of an act of a type of document is forged or altered. The forgery or alteration of public and private electronic records is responding to the forgery, alteration and alteration of such provisions of the Criminal Act. In comparison with the crime of forging private documents (Article 231) and the crime of forging private documents (Article 232-2), the two crimes are identical in the form of the constituent elements and statutory punishment if the object of the act is not paper documents or electronic records are excluded from the difference depending on whether they are electronic records. In general, the meaning of the term “the forgery of special media records, such as electronic records,” which is not used in advance and ordinarily without any definition provision, is not known, and the meaning of the term “the forgery of special media records, such as electronic records,” which is not used in advance and ordinarily, can only be interpreted as being similar to the forgery of document.

Therefore, as stated in the Majority Opinion, the attitude that considers the meaning of “discipheration” as the combination of the words “disciphering” and “disciphering” with the words “discipheration,” as indicated in the Majority Opinion, as the combination of “disciphering” and “disciphering” as the combination of “disciphering” in the above Article, as well as the meaning of “discipher

C) In order to establish the crime of aiding and abetting a recording of a person in advance, the Majority Opinion must meet the “purpose of causing the handling of affairs” other than the “discrimination,” and thus, even if the “discipation” as stipulated in Article 232-2 of the Criminal Act includes the fabrication, the scope of punishment is excessively broad and cannot be deemed to be contrary to the principle of legality.

However, “the purpose of causing the execution of affairs” in the crime of aiding and abetting a prior recording is to limit the subject of punishment than “the purpose of uttering” in the crime of forging a private document, which is an excessive subjective element. However, the wide scope of punishment by including false preparation in the “discipation” under Article 232-2 of the Criminal Act is contrary to the purport of the Criminal Act, as well as to the purport of the provision of an excessive subjective element, and is likely to undermine the legal stability of the general public depending on the expansion of the scope of punishment. In addition, the subjective constituent elements and objective constituent elements are different by means of proof, and thus, are not difficult to escape from suspicion on the grounds that there is no subjective element of crime.

Therefore, it is difficult to accept that it can control the expansion of the meaning of "compact" through the interpretation of subjective constituent elements.

D) As can be seen, in light of the form and content of the constituent elements of the crime of fabrication of a prior recording, its statutory punishment, the attitude of the Criminal Act on the crime of fabrication of a private document, and the established concept of the general public, etc., it shall be interpreted that only means forgery of a type. Such interpretation is an interpretation of constitutional consistency that removes possession of unconstitutionality based on uncertainty. However, even though there is no reasonable ground to regulate the forgery of a private document and the writing of a prior recording, unlike the forgery of a private document that only punishs forgery, it would be unreasonable to interpret that the act of fabrication of a prior recording of a private document includes the forgery of a private document, which is different from the forgery of a private document, and would be excessively widen the scope of punishment by expanding the meaning of the text without any reasonable reason. Therefore, it is contrary to the principle of no punishment without law, which is the principle of criminal law.

2) The Majority Opinion confirms that at the time of the amendment of the Criminal Act, the legislative intent of the legislators also includes an intangible forgery as stipulated in Article 232-2 of the Criminal Act. In the case of electronic records, there is a gap in punishment unless it is interpreted that an intangible forgery is included in “an intangible forgery” as it is highly necessary to punish an intangible forgery, unlike the case of documents.

A) Examining the amendment process of the Criminal Act in 1995, the Majority Opinion is clear that it was the legislator’s intention to include “a case of making a false electronic record” in “a false electronic record” under Article 232-2 of the Criminal Act.

It is recognized that there exist the above contents in the “written reason for proposing the amendment of the Criminal Act” prepared by the Government or the “written evidence for examining the amendment of the Criminal Act” prepared by the Legislation and Judiciary Committee of the National Assembly. However, in the outline of amendment of the Criminal Act, the agreement was reached to newly establish the “crime of electronic recording” as in the Japanese Criminal Act, and the form of the act was finally determined through the “commencing and changing”. There was no serious discussion as to what means the “commencing” under Article 232-2 of the Criminal Act in the course of the materials on the grounds for modification or the public hearing of the National Assembly. In light of such circumstances, the foregoing materials alone cannot be deemed as clarifying the legislative intent at the time of the amendment.

In the interpretation of penal provisions, the systematic and logical interpretation method that clearly expresses the logical meaning of the language and text in accordance with the systematic relevance of the legal provisions that take into account the legislative intent and purpose within the possible scope of the language and text is the most accessible interpretation to the essential substance of the provision, and is in conformity with the principle of no punishment without the law (see Supreme Court Decision 2018Do2844, May 11, 2018). In addition, the statutory interpretation ought to be made in the direction of finding a concrete validity to the extent that it does not undermine legal stability. To this end, the statutory interpretation ought to be faithfully interpreted within the ordinary meaning of the language and text used in the law, in principle, to conform to the request for the interpretation of the law that is reasonable by additionally mobilization of the systematic and logical interpretation method that takes into account the legislative purpose and purpose, history of the enactment and amendment, harmony with the overall legal order, relations with other Acts and subordinate statutes (see Supreme Court Decision 2014Do1345, Mar. 26, 2015).

Even if the legislative intent was to include false electronic records as stated in the Majority Opinion as stated in Article 232-2 of the Criminal Act, the legislative intent is only one of the several elements that should be considered in the interpretation of the law. Thus, even if the court interpreted the concept of “compact” differently from the legislative intent, it does not deviate from the method of interpreting penal provisions. The role of the judicial branch is to declare what the law is, and the degree of resolving wrong legislation through new legislation (e.g., the degree of resolution). It is not desirable to resolve the problem of legislation by expanding the scope of punishment through interpretation that creates a new meaning beyond the ordinary meaning of the language and text.

B) In addition, the Majority Opinion has to equally interpret the term “defluence” in the crime of writing on public electronic records and the crime of writing on public electronic records. In a case where the forgery of a prior forgery of a prior forgery of a public electronic record is not considered as a “defluence”, there is a gap in the regulation of an act that is in need of punishment due to the occurrence of a consequence that does not punish the fabrication of a prior forgery of a public electronic record, and it is unreasonable that it does not conform to the attitude of criminal law punishing a crime of writing on

However, the expanded interpretation of unclear regulations on the grounds that there is a gap in punishment for false preparation of electronic records is in violation of the principle of no punishment without the law as seen earlier. It is not reasonable to resolve the unclear regulations through the expanded interpretation of the provisions that are to be resolved through appropriate legislation if there is a need for punishment. In particular, even though accepting the fact that the “defluence” as referred to in the public electronic records should be interpreted in the same sense, it is difficult to agree that the punishment for forgery of the public electronic records needs to be punished, and it is also difficult to accept the result of punishment for forgery of the public electronic records. The role of the judiciary is to protect an individual’s fundamental rights, and the attitude of regulating society by expanding or interpreting the punishment regulations that are unclear on the grounds that there is a need for punishment according to the present situation exceeds the principal part of the judiciary.

3) Article 161-2 of the Japanese Criminal Act provides for the crime of writing or printing in a private electronic register under paragraph (1) and Article 161-2 (2) of the same Act. According to the legislative data at the time of the establishment of Article 161-2 of the Japanese Criminal Act, the Majority Opinion states that “an act of a person who is authorized to enter data and is obligated to enter them into false data against the intent of the system installer by abusing his/her authority shall also be deemed to fall under “illegal withdrawal.” This attitude in Japan can be referred to in the interpretation of the concept of “unfair writing” under Article 232-2 of the Korean Criminal Act.

However, in our criminal law, the form of an act related to electronic records is “compacting,” while in the Japanese criminal law, the term is different from one another. Since the Japanese criminal law gives the meaning that an act of abusing authority is an act of using the word “compacting” and adding the word “dispactation” in front of it, it can derive interpretation of an act of abusing authority in itself. In light of the difference between the term “compacting” and the term “dispacting”, the concept of “dispacting” cannot be interpreted as the same as that of the Japanese criminal law using the word “dispacting”.

B) Article 267(1) of the German Criminal Code, which constitutes the crime of forging documents under the Korean Criminal Code, provides that “a person who forges or alters a document to deception a legal transaction, or who uses a forged or altered document, shall be punished by imprisonment for not more than five years.” This provision is interpreted as being applicable only to forging documents in the same manner as the Korean Criminal Code. Furthermore, Article 269(1) of the German Criminal Code, which falls under Articles 227-2 and 232-2 of the Korean Criminal Code, provides that “a person who stores or alters a document to be used as a forged document or altered document, or who stores or alters such document or uses the modified document when he/she knows it in the course of legal transaction, shall be punished by imprisonment for not more than five years.” Article 269(1) of the German Criminal Code provides that “A person who uses the forged or altered document shall be punished by imprisonment for not more than five years.” However, Article 269(2) of the German Criminal Code and the Supreme Court shall be construed as applicable only to the type of data provided for forgery.

Meanwhile, Article 271(1) of the German Criminal Code provides that “A person who makes another person prepare or store an indication of an intention, contents or fact with respect to his/her rights or legal relations, the actual expression of an intention, contents of consultation or fact, or the qualification not recognized by a person, or despite the existence or occurrence of an indication or fact by another person with respect to his/her rights or legal relations, shall be punished by imprisonment for not more than three years or by a fine,” and Article 348(1) provides that “A public official who is authorized to prepare a public document prepares a false fact within the scope of his/her competence, or registers or enters a false fact in a public registry, public account book, or public data, shall be punished by a fine not exceeding five years or a fine.” According to the provisions of the German Criminal Code, the subject matter of an act shall not be limited to “official data” or “data.”

C) The reason why our criminal law does not punish the forgery of a private document is to refrain from exercising the penal authority of the State to the maximum extent possible in the area of private autonomy, unlike public documents. Such attitude of the criminal law is also applicable to electronic records that are not documents. In doing so, in addition to electronic records consistent with the truth in conducting business, there may be many cases where electronic records, other than those consistent with the truth, are prepared, which contain false details that do not fit the truth in an inevitable situation. However, if it is interpreted that such electronic records constitute “a fraudulent act” regardless of who is the preparing authority, solely on the ground that they are prior records containing false information, an investigative agency may, even if it fails to discover evidence related to the suspected facts initially investigated during the search and seizure process, create a risk of abusing the private right by discovering a prior record containing false information and utilizing such false information for a separate investigation. In such cases, it can be easily anticipated that the management activities of a company may be reduced. Therefore, interpreting the “a forged document” as referred to in Article 232-2 of the Criminal Act without changing the concept of the general public with regard to forgery.

4) In short, the term “compactation” as defined in Article 232-2 of the Criminal Act means a case where a person who is not entitled to participate in the creation of electronic records prepares electronic records or enters unit information necessary for the creation of electronic records.

(b) The elements and abuse of authority for the crime of writing a recording in advance;

The Majority Opinion states that the Defendants’ act constitutes a case where the Defendants, who were authorized to input individual unit information within the scope of their duties, abused their respective authority and input false information. However, it is difficult to accept this point for the following reasons.

1) The Majority Opinion seems to have across the boundary of an unreasonable expansion interpretation of “compact” by restricting the cases where a person subject to punishment for false preparation of a prior record but abuse of authority. The relationship between the crime of infringement of official electronic records and the crime of infringement of official electronic records and the crime of infringement of authority in advance ought to be uniformly interpreted, both are the purport of recognizing the establishment of a crime when a person satisfies all the requirements for the crime of infringement of authority and falsity.

However, in the case of public documents in the crime concerning documents under the Criminal Act, if there exists a false preparation of public documents, it shall be punished, and the requirements for the abuse of authority are not required. Nevertheless, the abuse of authority is a separate element in the crime of aiding and abetting electronic records. However, there is no ground for interpreting the same as the provision under the Criminal Act of the Republic of Korea without the expression “unlawful” like the Japanese Criminal Act. Moreover, in the case of private documents, the preparation of false documents is not subject to punishment in principle. Nevertheless, in the crime of aiding and abetting electronic records in advance, the requirements for the abuse of authority are added to the punishment of preparing false documents. This can be deemed as an absolute attitude to alleviate the illegality that is all punished by the crime of forging and forging electronic records in advance, but the provisions of the Criminal Act are not sufficient to derive the interpretation of a false preparation of authority.

2) Furthermore, according to the Majority Opinion, the requirements for establishing an intangible group subject to punishment for the crime of aiding and abetting recording in advance are to create electronic records contrary to the intent of the installer and operator of the electronic system by abusing authority and inputting false information. In such cases, if the falsity of input information is recognized, the abuse of authority is not recognized, but the abuse of authority is recognized as a separate element, respectively.

However, a corporation is an independent right entity, but it cannot act as a natural person, so that it is necessary to establish a certain organization in order to determine its intent and act in accordance with its intent. Generally, the decision-making body of a corporation is the general meeting of shareholders, board of directors, executive organ, supervisory organ, etc. The representative director of a corporation is authorized to perform all judicial or extra-judicial acts pertaining to the business of the corporation (Article 389(3) and Article 209(1) of the Commercial Act). Therefore, unlike a representative, the representative director is not a substitute for the act of the corporation, but is an organization of the corporation itself, i.e., the act of the corporation. In this case, the company is realized through its representative director, and since the representative director's act is the act of the company, it is difficult to present the intent and act of the representative director against the intent

Therefore, even if we agree with the majority opinion on the meaning of "comforcing" in the crime of aiding and abetting a prior recording, it is difficult to view that the representative director's inputtings false information into the electronic records of the system established and operated by the company as an act based on the company's intent, and thus, constitutes an abuse of authority.

C. Conclusion

The Defendants’ act does not constitute “an intentional act” as prescribed in Article 232-2 of the Criminal Act. Nevertheless, in so determining, the lower court erred by misapprehending the legal doctrine on the meaning of “an intentional act” as prescribed in Article 232-2 of the Criminal Act, thereby adversely affecting the conclusion of the judgment. Therefore, the lower judgment related to this part shall be reversed and the case shall be remanded to the lower court for further proceedings consistent with this Opinion.

For the foregoing reasons, we express our concurrence with the Majority Opinion.

Chief Justice Kim Jong-soo (Presiding Justice)