[1] The meaning of "loan of access media" and "compensation" under Article 6 (3) 2 of the Electronic Financial Transactions Act

[2] In a case where the Defendant was indicted of violating the Electronic Financial Transactions Act by promising the Defendant to obtain a loan from a person who is the team leader A, whose name is unknown, to receive the payment by using Kwikset Service, and then lending the means of access to electronic financial transactions in return for promising the Defendant to receive payment, the case holding that the lower court erred by misapprehending the legal principles as to the “loan of Access Media” or “price” under Article 6(3)2 of the same Act, which acquitted the Defendant

[1] The Electronic Financial Transactions Act was enacted to clarify the legal relationship of the electronic financial transaction to ensure the safety and reliability of the electronic financial transaction (Article 1). “The act of lending a means of access while receiving, demanding or promising the payment” (Article 6(3)2). The said Act punishs a person who lends a means of access in violation of Article 49(4)2 (Article 49(2).

"Lending a means of access" under Article 6 (3) 2 of the Electronic Financial Transactions Act means lending a means of access so that any other person may temporarily use the means of access without managing and supervising the user of the means of access while receiving, demanding or promising to receive compensation, requesting or promising to do so, and "price" means economic benefits in relation to the lending of the means of access.

[2] In a case where the Defendant: (a) promised to receive a loan from a person who is the team leader A, whose name is unknown; (b) promised to receive a payment by sending a physical card connected to the bank account under the Defendant’s name to Kwikset Bank service to receive payment; and (c) was prosecuted for violation of the Electronic Financial Transactions Act, the case holding that the lower court erred by misapprehending the legal doctrine on “the means of access” under Article 2(3) of the Electronic Financial Transactions Act and failing to exhaust all necessary deliberations on the following grounds: (a) the Defendant was unable to obtain a loan by a normal method since he was given several answers despite having received loan counseling through the Internet; and (b) the Defendant could obtain an opportunity to receive a loan from a person who is the team leader A using the physical card through the physical card, which is the means of access; and (c) the Defendant could obtain an opportunity to receive a loan from another person temporarily using the means of access without managing and supervising the user of the means of access; and (d) the Defendant obtained an opportunity to obtain a loan by normal means of access to the means of access.

[1] Article 1, Article 2 subparag. 10, Article 6(3)2, and Article 49(4)2 of the Electronic Financial Transactions Act / [2] Article 2 subparag. 10, Article 6(3)2, and Article 49(4)2 of the Electronic Financial Transactions Act

[1] Supreme Court Decision 2016Do8957 Decided August 18, 2017 (Gong2017Ha, 1822)

Defendant

Prosecutor

Suwon District Court Decision 2017No2298 decided September 22, 2017

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

The grounds of appeal are examined.

1. Summary of facts charged

On June 8, 2016, the Defendant agreed to obtain a loan of KRW 3 million from a person who is not aware of his name before the Defendant’s house located in Ischeon-si ( Address omitted) to a third party, and sent a physical card connected to the new bank account in the name of the Defendant, the means of electronic financial transactions, using Kwikset’s service, to a person whose name is unknown. Accordingly, the Defendant promised to receive compensation and lent the means of access in electronic financial transactions.

2. The judgment of the court below

For the following reasons, the lower court reversed the first instance judgment and acquitted the Defendant on the ground that the instant facts charged constituted a case where there is no proof of criminal facts.

The Defendant appears to have issued a physical card to the Nonindicted Party’s false statement of the Nonindicted Party’s team leader who requires a physical card in the course of lending. Even though the Defendant stated that “the Defendant may enter and depart from the process to increase the Defendant’s account performance,” it is difficult to readily conclude that the Defendant transferred the Defendant’s free right to use the Defendant’s account to the other party for the purpose of obtaining an opportunity to obtain a loan, and there is insufficient evidence to acknowledge otherwise.

3. Supreme Court Decision

However, the lower court’s determination is difficult to accept.

A. The Electronic Financial Transactions Act was enacted to clarify the legal relationship of electronic financial transactions to ensure the safety and reliability of the electronic financial transaction (Article 1). “The act of lending a means of access while receiving, demanding or promising the payment” (Article 6(3)2). The said Act punishs a person who lends a means of access in violation of Article 49(4)2 (Article 49(2).

"Lending a means of access" under Article 6 (3) 2 of the Electronic Financial Transactions Act means lending a means of access to a third party temporarily by using a means of access without managing or supervising the user of the means of access (see Supreme Court Decision 2016Do8957, Aug. 18, 2017); and "price" means economic benefits that correspond to the lending of the means of access.

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following facts.

(1) Around June 2016, the Defendant gave answers that most of it is difficult for the Defendant to receive a loan consultation on several occasions on the Internet because there is no income. Of these, the Defendant was asked to ask the Nonindicted Party’s team leader, who is the Nonindicted Party’s team leader, whether the loan is necessary. The Nonindicted Party’s team leader, who is the Nonindicted Party, was in need of an examination. The Nonindicted Party’s team leader, who was the Nonindicted Party, was in need of a loan, was in need of an examination, and was in need of a loan through a loan examination, shall create a credit limit by making the details of the deposit and the deposit and the transaction record even if the loan was made, and the account for the loan to be made by automatic transfer of the loan interest is also necessary, and thus, the Defendant sent a certified copy of resident registration, copy of head of passbook, identification card, and physical card through Kwikset

(2) At the time, the Defendant was aware of the fact that he received the check card again upon the completion of the lending procedure, and did not specifically determine when and at any time. On the day following the date of sending the check card, the Defendant was aware of the fact that he did not know himself to a new bank account through the Internet banking, and the Defendant was able to borrow a loan without any objection to the explanation that he would increase the transaction performance with the Nonindicted Party’s team leader. Since then, the Defendant was suspended the transaction of the said new bank account with the Nonindicted Party’s team leader, etc., without any further contact with the Nonindicted Party’s team leader.

C. We examine these facts in light of the legal principles as seen earlier.

Although the Defendant received a loan consultation on several occasions on the Internet, it was difficult for the Defendant to receive a loan by a normal method because it was difficult to do so. The Defendant explained that the Nonindicted Party, as the team leader, can obtain an opportunity to obtain a loan by creating a credit limit by using a physical card, which is a means of access, even if processed by using the physical card, and by raising the credit limit. The Defendant sent the physical card again upon completion of the loan procedure.

As the Defendant promised to obtain an opportunity to receive a loan, he/she temporarily lent the means of access to allow another person to use the means of access without managing and supervising the user of the means of access, and obtaining an opportunity to receive a loan even in a situation where it is difficult for the Defendant to receive a loan in a normal manner is a quid pro quo relationship, that is, a quid pro

The lower court should have deliberated and determined whether the Defendant promised to obtain a loan opportunity and lent the means of access. In so doing, the lower court erred by failing to exhaust all necessary deliberations and by misapprehending the legal doctrine on the “loan of access media” or “price” as provided by Article 6(3)2 of the Electronic Financial Transactions Act, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

4. Conclusion

The prosecutor's appeal is with merit, and the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating

Justices Lee Dong-won (Presiding Justice)