[1] The meaning of "influence of unlawful orders" among the elements of a crime of fraud by use of computers, etc., and whether an act of allowing improper administrative affairs in light of the purpose of processing affairs by actively using errors arising from the program itself of the processing system constitutes "influence of unlawful orders" (affirmative in principle)

[2] In a case where the defendant entered a lottery purchase order under certain conditions in the electronic lottery purchase system operated by Gap corporation, and repeated act of entering a lottery purchase order using program errors in an amount the virtual cash of the same amount as the amount of the request amount for lottery ticket purchase into the virtual account, thereby making a deposit of the amount equivalent to the request amount for lottery purchase into his virtual account, the case holding that the defendant's act constitutes "inform of an unlawful order" under the crime of fraud by using computers, etc.

[1] Article 347-2 of the Criminal Act punishs a person who acquires, or causes a third party to acquire, pecuniary benefits by inputting, or inputting, altering, data processing through, a false information or improper order into a computer or any other information processing device without authority. Here, “information of an improper order” refers to inputting an order that should not be given in light of the purpose of processing affairs scheduled in the pertinent processing system. Therefore, even if “information of false information” is not a case of inputting, the act of unreasonably altering, or deleting an individual order constituting the program of the pertinent processing system, as well as the act of illegally altering, or deleting an unreasonable processing order in light of the purpose of processing the business affairs by actively using, an error arising from the program itself, barring special circumstances.

[2] In a case where the Defendant entered a bank refund order in the electronic lottery purchase system operated by Company A and made the balance less than 1,000 won by using program errors of the same amount as the cash deposited in the virtual account when the virtual account balance comes to be less than 1,000 won when the virtual account balance comes to be less than 1,000 won, and again entered the lottery purchase order in the virtual account again, thereby making the Defendant deposit the amount equivalent to the Defendant’s virtual account, the case holding that the Defendant’s act does not constitute a “false information entry” as provided by Article 347-2 of the Criminal Act, even if it does not constitute a “illegal information entry” as provided by Article 347-2 of the Criminal Act, and constitutes an “an act of making the Defendant conduct unreasonable administrative affairs in light of the purpose of administrative affairs by actively using the error

[1] Article 347-2 of the Criminal Code / [2] Article 347-2 of the Criminal Code

[1] Supreme Court Decision 2008Do128 Decided September 9, 2010, Supreme Court Decision 2012Do9289 Decided November 15, 2012

Defendant

Prosecutor

Seoul Southern District Court Decision 2010No2262 decided April 1, 2011

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. Article 347-2 of the Criminal Act punishs a person who acquires, or causes a third party to acquire, pecuniary benefits by inputting, or inputting, or altering, any false information or improper order into, the data processing device, such as a computer, without authority. Here, “information of an improper order” refers to inputting an order that should not be given in light of the purpose of processing affairs scheduled in the relevant processing system (see, e.g., Supreme Court Decision 2008Do128, Sept. 9, 2010). Therefore, even if “information of false information” is not a case of inputting, the act of unreasonably altering or deleting individual orders constituting the program of the relevant processing system, as well as actively using errors arising from the program itself, constitutes “inform of an improper order.”

2. In accordance with the evidence duly adopted by the first instance court, the lower court affirmed the first instance judgment that found the Defendant not guilty of the charges of this case on the ground that: (a) the Defendant entered a bank refund order or a lottery purchase order in the virtual account of the Internet site operated by Nonindicted Co., Ltd. when the balance of the virtual account does not exceed 1,000 won; (b) recognized the fact that the program error in which the virtual cash is deposited in the same amount as the virtual cash from the virtual account when the electronic lottery purchase order was entered; (c) made the balance less than 1,000 won using it and repeated the act of entering the electronic lottery purchase order again into the virtual account; and (d) made the Defendant deposit a total of KRW 18,123,800 in the Defendant’s virtual account in accordance with the procedure permitted by the pertinent website; and (c) the Defendant’s act cannot be deemed as “the entry of false information” as well as “the act of the Defendant using the error in the pertinent program,” and did not constitute the elements of “unlawful entry”.

However, in light of the aforementioned facts in light of the legal principles as seen earlier, even though the Defendant clearly recognizes that an error occurs in the operation of a program that constitutes an electronic lottery purchase system under certain conditions, it shall be deemed that the Defendant’s act of doing business that is not legitimate in light of the purpose of the program itself and constitutes “influence of an unlawful order” as stipulated in the above penal provisions, as it constitutes “influence of an unlawful order” as stipulated in the above penal provisions, by establishing a situation where the balance of 1,000 won or less in the virtual account is less than the balance of 1,00 won through a bank refund order, and inputting the electronic lottery purchase order, unlike the ordinary process of business affairs, by entering into the virtual account in comparison with the normal process of business affairs.

In such a case, the court below should have judged the defendant not guilty as a legitimate legal evaluation of the defendant's act as a crime of fraud by using computers, etc. under Article 347-2 of the Criminal Act. However, the court below found the defendant not guilty on different premise. In so doing, the court below erred by misapprehending the legal principles on the elements of the crime of fraud by use of computers, etc. and the scope of application thereof, which affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)