전자금융거래법위반
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
However, the period of two years from the date this judgment becomes final and conclusive.
1. Summary of grounds for appeal;
A. The lower court found the Defendant guilty of violating the Electronic Financial Transactions Act due to the storage of access media, and sentenced the Defendant to collect KRW 10,500,000, which is the money received in return for cash withdrawal using the access media kept by the Defendant and confiscated KRW 9,101,00,00 in cash possessed by the Defendant at the time of arrest.
In doing so, these money are not directly related to the original guilty charges because they are related to the act of withdrawing cash by using the above access media or are merely related to the price obtained by such act, regardless of the defendant's act of keeping the access media corresponding to the facts charged in this case.
Nevertheless, the judgment of the court below which sentenced 10,50,000 won as to the defendant's forfeiture of Nos. 9 through 11 and additional collection of No. 10,500 is erroneous in the misapprehension of legal principles as to forfeiture
B. The sentence that the court below sentenced against the defendant (the imprisonment of eight months, confiscation, and collection) is too unreasonable.
2. Determination
A. According to Article 48 of the Criminal Act regarding the assertion of misunderstanding of legal principles, the requirements for sunset or collection should be related to the facts charged for which a public prosecution has been instituted, and it is impossible for a court to recognize the facts charged for which no public prosecution has been instituted and to sentence confiscation or collection thereof as a result of its violation of the principle of disadvantage and disadvantage (see, e.g., Supreme Court Decision 92Do700, Jul. 28, 1992). The facts charged in the instant case violates Article 49(4)2 and Article 6(3)2 of the Electronic Financial Transactions Act by keeping access media after promising the Defendant to receive compensation from a person who is not his/her name as stated in the facts charged in the lower judgment. The act of withdrawing cash using the access media kept by the Defendant is within the scope of the constituent elements of the above facts charged and the applicable provisions.