[1] Whether the act of violating the Act on Real Name Financial Transactions and Confidentiality is subject to the provisions of a justifiable act under the Criminal Act (affirmative)

[2] The case holding that the act of submitting the above chief director and his children's financial transaction statement to the above chief director and his children acquired in the civil procedure against the above chief director when the chief of the administrative division of the school juristic person and the labor union chief filed a complaint in embezzlement constitutes a justifiable act

[1] Although the Act on Real Name Financial Transactions and Guarantee of Secrecy does not stipulate the grounds for exclusion of illegality as to the disclosure or divulgence of secrets in violation of the above Act, it is not an unlimited fundamental right, but a relative fundamental right that can be restricted by the law in accordance with the legal principles of restriction of fundamental rights under Article 37(2) of the Constitution, and it is reasonable to view that the grounds for exclusion of illegality under the Criminal Act, which is the basic law on criminal punishment, apply to such act.

[2] The case holding that the act of submitting the above chief director and his/her administrator's financial transaction statement to the above chief director and his/her administrator's financial transaction statement against the above chief director and the above chief director acquired in the civil procedure against the above chief director when the chief of the administrative division of the school juristic person and the union chief filed a complaint for embezzlement constitutes a

[1] Articles 4(5) and 6(1) of the Act on Real Name Financial Transactions and Confidentiality, Article 20 of the Criminal Act / [2] Articles 4(5) and 6(1) of the Act on Real Name Financial Transactions and Confidentiality, Article 20 of the Criminal Act

Defendant 1 and one other

Is Earsen

Public-service Attorney Kim Jin-young

Defendants are not guilty.

1. Summary of the facts charged

The summary of the instant facts charged is as follows.

Defendant 1 was the chief executive officer of Nonindicted Incorporated Foundation 1, and Defendant 2 was the chief executive officer of the said Institute.

A. Defendant 2

On May 27, 2005, at the (name omitted in the name of the school) high school trade union office located in Pakistan-si (name omitted) around May 27, 2005, the bank submitted the financial transaction details with respect to the above non-indicted 2 upon the order of submission by the above judge in the lawsuit claiming the return of the forced portion of inheritance (case No. 1 omitted), the Seoul Central District Court (Case No. 1 omitted) where the non-indicted 2, the president of the above school, was the defendant.

B. Defendant 1

On October of the same year, at the public service center of the Pakistan Police Station around October of the same year, Defendant 2 filed a criminal complaint against his/her ward while he/she was provided with the above financial transaction statements by Defendant 2, and submitted the above statement to the complaint room to divulge transaction information to others.

2. Defendants’ assertion

The Defendants asserted to the effect that the money of the school foundation to be used for students in the course of the above civil procedure inevitably disclosed financial transaction information in order to prosecute their useful behavior for the personal interest, and this is a legitimate act that does not go against the social norms, and its illegality is excluded.

3. The relevant provisions and significance of the Act on Real Name Financial Transactions and Guarantee of Secrecy;

A. Articles 6(1) and 4(5) of the Act on Real Name Financial Transactions and Confidentiality (hereinafter “Real Name Financial Transactions Act”) applicable to the Defendants charged with the instant prosecution.

Article 6 (Penalty Provisions)

(1) Any person who violates the provisions of Article 4 (1) or (3) through (5) shall be punished by imprisonment for not more than five years or by a fine not exceeding 30 million won.

Article 4 (Guarantee of Secrecy of Financial Transactions)

(1) No person working for a financial institution shall provide or divulge information or data concerning the details of financial transactions (hereinafter referred to as "transaction information, etc.") to any other person unless he/she receives a written request or consent from the holder of the title deed (in cases of trust, referring to a truster or beneficiary), and no person may request a person working for a financial institution to provide transaction information, etc.: Provided, That the same shall not apply to cases falling under any of the following subparagraphs where he/she provides or requests the provision

1. To order the submission of transaction information by a court or by a warrant issued by a judge;

2. Not more than the omission;

(4) Persons who have come to know transaction information pursuant to the provisions of each subparagraph of paragraph (1) (including the provisions of Article 5 (1) 1 through 4 of the previous Act on Real Name Financial Transactions and Guarantee of Secrecy and the provisions of each subparagraph of Article 4 (1) of the Emergency Financial and Economic Order on Real Name Financial Transactions and Guarantee of Secrecy) shall not provide or divulge such information to other persons or use such information for purposes other than the original purpose thereof, and no person may request persons who have come to know of such information, etc. to provide such information: Provided, That the provision thereof shall not be omitted;

(5) Persons who have obtained transaction information, etc. provided or disclosed in violation of paragraph (1) or (4) (including those who have obtained such information, etc. again from them) shall not provide or disclose it to others where they come to know such violation.

B. Articles 4 and 6 of the above Act provide for the protection of privacy in financial transactions, which are fundamental rights of citizens guaranteed under the Constitution of the Republic of Korea. Article 17 of the Constitution of the Republic of Korea provides that “All citizens shall not be subject to any infringement on the confidentiality and freedom of privacy.” Accordingly, the Act on Real Name Financial Transactions protects the privacy of citizens in financial transactions by strictly prohibiting the use of financial transaction information acquired through the above provisions for purposes other than the purpose of protecting their privacy and the disclosure of information.

4. Whether the act of violation of the Act on Real Name Financial Transactions is subject to the provision of a justifiable act which is a ground for general illegality under the Criminal Act

Although the Financial Real Name Act does not stipulate a separate ground for excluding disclosure or divulgence of secrets in violation of the above Act, the secrets in financial transactions are not an unlimited and absolute basic right, but a relative basic right that can be restricted by the law in accordance with the legal principles of restriction of fundamental rights under Article 37(2) of the Constitution, and it is reasonable to see that such acts are subject to the application of the grounds for excluding illegality under the Criminal Act, which is the basic law on criminal punishment.

On the other hand, Article 20 of the Criminal Act provides that "an act that does not violate social rules" is justified as a justifiable act. "an act that does not violate social rules" refers to an act that is acceptable in light of the overall legal order or the social ethics or social norms surrounding it, and the illegality of a certain act is excluded as a legitimate act that does not violate social rules should be determined individually under specific circumstances. Thus, to be recognized as a justifiable act, the following requirements should be met: (i) legitimacy of motive or purpose of the act; (ii) reasonableness of means or method; (iii) balance between the protection benefit and infringement benefit; (iv) balance between the protection benefit and infringement benefit; and (v) supplementaryness that there is no other means or method than the act (see, e.g., Supreme Court Decisions 2003Do3000, Sept. 26, 2003; 2003Do4934, Jun. 25, 2004).

5. Whether the disclosure of Nonindicted 5’s financial transaction information to the investigation agency constitutes a ground for exclusion of illegality

A. Facts up to the accusation of this case

The following facts are acknowledged in full view of the defendants' statements and the evidence presented during the trial of this case in the public trial of this case.

(1) Defendant 2 served as the head of the administration division of Nonindicted Incorporated Foundation 1, and Defendant 1 is working as the chairman of the trade union of the above corporation. Defendant 2 filed a lawsuit against Nonindicted 2, the president of the above school foundation, who was the principal of the above school foundation, for the death of Nonindicted 3, who was the founder of the above school foundation. During the above lawsuit, Defendant 2 was found to have been paid KRW 5,00,000 monthly from the above school foundation to the above non-indicted 5, while examining the financial transaction information of Nonindicted 2 and Nonindicted 5, who managed the property of Nonindicted 4, which was a double-type, submitted by the above court, in order to confirm inherited property in the above lawsuit.

(2) Accordingly, Defendant 2, on the part of Defendant 1, who is the chairman of the Trade Union and Labor Relations Commission, transferred 1 million won to the account of Nonindicted 5, who is his administrator, in the form of salary, in the form of Nonindicted 4 and Nonindicted 2, who is his administrator, and deemed that he embezzled it individually, and submitted the above financial transaction statement to the public service center of the Pakistan Police Station around October 2005 when filing a complaint against the above Nonindicted 4 and Nonindicted 2 as embezzlement.

B. Determination as to whether the grounds for exclusion of illegality constitute grounds for exclusion

(1) Article 324(1) of the Criminal Procedure Act provides that any person may file a criminal charge when he/she believes that an offense is committed. The fact that Defendant 2 notified Defendant 1 of the financial transaction details of Nonindicted 5 acquired in the process of civil procedure to Defendant 1 and divulged them to the investigation agency along with Defendant 1 was not disclosure of personal financial information for the purpose of simple interest or private criticism, but it was based on the public interest purpose of preventing unlawful outflow of the school juristic person’s property and filing a criminal charge against Nonindicted 2 and his/her children, the chief director of the school juristic person or Nonindicted 4, who

(2) Notwithstanding that Nonindicted 5 is not a full-time executive of a school juristic person, the Defendants received money equivalent to the amount of money, and considering the relationship between Nonindicted 5 and Nonindicted 2 and Nonindicted 4, there is considerable reason to deem that Nonindicted 2 and Nonindicted 4 illegally divulged or embezzled the school juristic person’s funds through Nonindicted 5.

(3) The Defendants did not disclose Nonindicted 5’s financial transaction information to the general public against many and unspecified persons, but inform the investigation agency of the details thereof, and the disclosed financial transaction information is related to the unlawful act of outflow of money. As such, the Defendants did not have any data supporting the Defendant’s illegal act in addition to the above financial transaction statement they acquired. Thus, even if the contents of the transaction statement include the above illegal financial transaction information, it is deemed inevitable to submit it to the investigation agency even if it included the above illegal financial transaction information in the transaction statement.

In full view of these facts, although the defendants' act of disclosing the financial transaction information of this case constitutes the elements of Article 6 (1), Article 4 (1), (4), and (5) of the Act on Real Name Financial Transactions, the defendants' act of disclosing the financial transaction information of this case constitutes each element of Article 6 (1), Article 4 (1), (4), and (5) of the Act on Real Name Financial Transactions, in full view of the whole, it is determined that the illegality is excluded

Thus, the above acts by the defendants are acts that do not violate the social rules and constitute legitimate acts, which are the grounds for excluding illegality as stipulated in Article 20 of the Criminal Act.

4. Conclusion

The facts charged in this case do not constitute a crime or there is no proof of a crime, and thus, the defendant is acquitted pursuant to Article 325 of the Criminal Procedure Act.

Judges Yu Hun-tae