Whether “transfer of access media” subject to prohibition and punishment under the former Electronic Financial Transactions Act includes simply lending means of access or allowing temporary use of means of access (negative)

Article 2 Subparag. 10 of the former Electronic Financial Transactions Act (amended by Act No. 9325, Dec. 31, 2008; hereinafter the same) provides for “electronic card and other electronic information equivalent thereto,” “user numbers registered with financial institutions or electronic financial business entities,” and Article 6(3) prohibits, in principle, the transfer or acquisition of the means of access. Article 49(5)1 provides that “any person who transfers or acquires the means of access in violation of Article 6(3) shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding 10 million won.” Generally, the interpretation of penal provisions ought to be strict and the interpretation of penal provisions to excessively expand or analogicalize the meaning of the express provision to the disadvantage of the accused is not permitted under the principle of no punishment without law, and the so-called “the act of temporarily lending and lending the means of access” or “the act of taking advantage of the Act No. 2531, Feb. 29, 2013” should not be deemed to be “the act of providing for the use of the means of access.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 2 subparag. 10, Article 6(3) of the former Electronic Financial Transactions Act (Amended by Act No. 9325, Dec. 31, 2008); Article 49(5)1 (see current Article 49(4)1 and 3); Article 6(3)2, and Article 49(4)2 of the Electronic Financial Transactions Act

Defendant

Prosecutor

Suwon District Court Decision 2011No3687 decided November 11, 2011

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 2 Subparag. 10 of the former Electronic Financial Transactions Act (amended by Act No. 9325, Dec. 31, 2008; hereinafter the same) provides for “electronic card and other electronic information equivalent thereto,” “user numbers registered with financial institutions or electronic financial business entities,” and Article 6(3) prohibits the transfer or acquisition of the means of access in principle. Article 49(5)1 provides that “Any person who transfers or acquires the means of access in violation of the provisions of Article 6(3) shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding 10 million won.”

In general, it refers to an act of transferring a right or an article to another person, and the interpretation of a penal provision should be strict, and the interpretation of a penal provision in the direction unfavorable to the defendant is not permitted in accordance with the principle of no crime without the law, it treats transfer and lease under the Civil Act as a separate concept, and it newly established a prohibition and punishment provision on “the act of lending or lending a means of access to a payment payment,” while amending the former Electronic Financial Transactions Act by Act No. 9325 on December 31, 2008 in order to actively cope with a crime using the so-called “debrison passbook” (Articles 6(3)2 and 49(4)2) of the former Electronic Financial Transactions Act, it is reasonable to deem that the transfer as referred to in the former Electronic Financial Transactions Act does not include the act of lending or temporarily using a means of access.

The court below's decision to the same effect as to the concept of transfer under the former Electronic Financial Transactions Act is just, and there is no error in the misapprehension of legal principles as alleged in the grounds

2. Regarding ground of appeal No. 2

The summary of the facts charged in the instant case is that the Defendant transferred eight cash cards and passbooks, the means of access to financial transactions, to the needy on April 3, 2008.

In light of the adopted evidence, the court below acknowledged the facts as stated in its holding, and found it reasonable to view that the defendant was guilty on the part of the lender by delivering the passbook, etc. in this case for the purpose of relianceing on the loan by deceiving the lender to return the passbook, etc. along with the loan. It is difficult to view that the defendant's above act does not constitute a case where the means of access is transferred, and further, it is difficult to view that there was a criminal intent to transfer the means of access at the time of the above act, and thereby acquitted the defendant.

However, we cannot accept the above determination by the court below for the following reasons.

Although the probative value of evidence is left to the discretion of a judge, the judgment is in accordance with the logical and empirical rules, and in a criminal trial, criminal facts are permitted to be proven to the extent that there is no reasonable doubt. However, it is not required to exclude all possible doubts, and rejection of evidence which is recognized as having probative value is beyond the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decision 2004Do221, Jun. 25, 2004).

On April 3, 2008, the Defendant: (a) reported on the advertisement in a living information room; and (b) opened a eight deposit account near the Seoul Southern District; (c) opened the passbook, etc.; and (d) did not confirm the personal information of the wounded at that time, office, etc.; and (e) did not specify specific time, place, method, etc. for returning the passbook, etc., barring any special circumstances, such act constitutes a case where the Defendant transferred the passbook, etc.; and (d) the lower court and the evidence duly examined by the lower court acknowledged by the lower court, and the lower court, as follows: (a) the Defendant reported the fact that the wounded was displayed in a living information room on March 14, 2008; (b) opened a 100,000 won of the passbook at the time of issuing it; and (c) the Defendant received the above 300,000 won of the passbook, etc. after receiving a summary order on March 27, 2008 and 308.

Thus, the facts charged of this case are proved to the extent that there is no reasonable doubt, and the court below accepted the defendant's defense suit without credibility and acquitted it. In so doing, it erred by misapprehending the legal principles on the principle of free evaluation of evidence and by erroneously recognizing facts in violation of logical and empirical rules, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Conclusion

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 Park Poe-dae (Presiding Justice)