전자금융거래법위반
The judgment of the court below is reversed.
Defendant
A Imprisonment with prison labor for six months, for ten months, for Defendant B, and for one year, for Defendant C.
1. Summary of grounds for appeal;
A. Of the crime of this case, if the date and time of the crime is identical or account holder is the same, the act of transferring or taking over the means of access can be deemed to have been conducted in a lump sum, and the act of transferring or taking over the said means of access is in a mutually competitive relationship between transfer and taking over the said means of access.
Nevertheless, the lower court determined that both the crime of violating the Electronic Financial Transactions Act and the crime of violating the Electronic Financial Transactions Act by taking over each means of access are in a substantive concurrent relationship, and thus aggravated punishment pursuant to the former part of Article 37 of the Criminal Act. Therefore, the lower court erred by misapprehending the legal doctrine on the number of crimes of violating the Electronic
B. The sentence imposed by the court below on the Defendants (Defendant A: imprisonment with prison labor for 6 months, Defendant B: imprisonment for 10 months, Defendant C: imprisonment with prison labor for 1 year and 1 year and 6 months) is too unreasonable.
2. Judgment on misapprehension of legal principles
A. Article 6(3)1 of the Electronic Financial Transactions Act provides that “No person shall transfer or acquire a means of access unless otherwise specifically provided for in any other Act in using and managing the means of access.” Article 49(4)1 of the same Act provides that “any person who has transferred or acquired a means of access in violation of Article 6(3)1 shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding 10 million won.” The crime of transfer and acquisition of a means of access provided for in the above Act constitutes one crime per each means of access. However, the above act of transfer or acquisition of a number of means of access in a lump sum constitutes a single act that constitutes a crime of violating several electronic financial transactions and thus, each crime is in a mutually competitive relationship.
(See Supreme Court Decision 2009Do1530 Decided March 25, 2010). B.
As to the instant case, the lower court erred by misapprehending the legal doctrine.