[1] Whether “transfer of access media” subject to punishment under Article 49(4)1 of the Electronic Financial Transactions Act includes gratuitous lending or delegation for temporary use (negative)

[2] In a case where the defendant opened a bank account to obtain a loan from the lender Gap who pretended to be a lending business operator, received the passbook and cash card, and sent it to the lender Gap by door-to-door, the case holding that the judgment of the court below which found the defendant guilty of the violation of the Electronic Financial Transactions Act guilty on the ground that the defendant merely delegated the above passbook and cash card to be used for a lump time until the loan is executed and it cannot be deemed that it was transferred

[1] Article 49(4)1 of the Electronic Financial Transactions Act prohibits the act of transferring or acquiring means of access in violation of Article 6(3)1 of the same Act. The interpretation of the Criminal Act requires strict interpretation, and it is not permitted to expand or analogically interpret the meaning of the provision in a manner unfavorable to the defendant. The act of lending or lending means of access without compensation is clearly and clearly not subject to punishment. Further, Article 6(3)3 of the same Act provides that the act of establishing a provision punishing the act of lending or lending means of access in return for payment under Articles 49(4)2 and 6(3)2 of the same Act shall not be subject to punishment. Article 49(1)5 of the same Act provides that the act of establishing a means of access, separate from the act of transferring the means of access, distinguish the amount of each act that is subject to punishment with respect to the act of disposal, and Article 49(3)4 of the same Act provides that the act of using the means of access shall not be subject to punishment, including the act of embezzlement or providing it to another person who uses or uses the means of access temporarily under Article 9(3).

[2] In a case where the defendant reported the text message that the defendant grants a loan to Gap and opened a new account from two financial institutions, and heard that if he sent the passbook and cash card with the passbook, he would increase the transaction performance by extending the loan, deposited the loan to the above account, deposited the passbook and cash card, opened the bank account to obtain the loan, issued the passbook and cash card, and then sent it by door to Gap, the case holding that the judgment of the court below which found the defendant guilty of the violation of the Electronic Financial Transactions Act was erroneous in the misapprehension of legal principles on the grounds that there was no other evidence supporting the above.

[1] Article 6(3)1, 2, and 3 of the Electronic Financial Transactions Act, Article 9(3), Article 49(1)5, Article 49(4)1, 2, and 3 of the Electronic Financial Transactions Act, Article 8 of the Enforcement Decree of the Electronic Financial Transactions Act / [2] Article 6(3)1, and Article 49(4)1 of the Electronic Financial Transactions Act, Article 307 of the Criminal Procedure Act

[1] Supreme Court Decision 2010Do2593 Decided September 30, 2010

Defendant

Defendant

Sick Jins

Gwangju District Court Decision 2010Gohap383 decided August 13, 2010

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of this decision shall be published.

1. Summary of grounds for appeal;

The Defendant’s statement that she would have the Defendant borrowed money from a person with no name and sent a passbook and cash card as stated in the facts charged, not transferring it. Nevertheless, the lower court found the Defendant guilty of the facts charged in this case, and thus, erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2. Summary of the facts charged in this case and the judgment of the court below

The summary of the facts charged of this case is as follows: "The defendant transferred two bankbooks and two cash cards of ○○ Bank (Account No. 1 omitted) including the electronic financial transaction means issued in the name of the defendant at a bus terminal located in Simpo-dong (hereinafter omitted) around December 18, 2009, to a person whose name is unknown through a bus crossing, which is the means of access (Account No. 1 omitted) and △△ Bank deposit passbook (Account No. 2 omitted), and the court below found the defendant guilty of the facts charged of this case by taking into account the evidence presented in the judgment below.

3. Judgment of the court below

A. The meaning of "transfer" under the Electronic Financial Transactions Act

Article 49(4)1 of the Electronic Financial Transactions Act prohibits the transfer of, or acquisition by, the means of access in violation of Article 6(3)1 of the same Act. ① Interpretation of the Criminal Act must be strict and it is not allowed to expand or analogically interpret the meaning of the provision disadvantageous to the accused. ② The current Electronic Financial Transactions Act establishes a provision punishing the act of lending or lending the means of access in return for consideration under Articles 49(4)2 and 6(3)2 of the same Act, which provides that the act of lending the means of access is not subject to punishment. Furthermore, it is clear that the act of lending the means of access is not subject to punishment, and it is reasonable to distinguish the form of each act subject to punishment with respect to the act of establishing the means of access, including the transfer of the means of access, and the provision punishing the act of establishing the means of access separately from the transfer of the means of access under Article 6(3)3 of the same Act, and Article 49(1)5 of the same Act does not regulate the use of or the provision of the means of access under Article 9(3) of the Electronic Financial Transactions Act.

B. Determination

According to the records of this case, the defendant reported the text message that he grants a loan to the person who has no name, and consulted about the lending. ② When the defendant opened a new account from two financial institutions in the above name, and sent the passbook and cash card to the above bank, he shall hear the loan by extending the transaction performance, deposit the loan to the above account, and return the above passbook and cash card, and he shall open the passbook and △△ Bank and receive the cash card, and then send it to the above name falsely. If the facts are the same, the defendant appears to have delegated the loan to the lender by the fact that the person who has no name is the most weak, and it cannot be deemed that he transferred the above passbook and cash card by the time of lending for the defendant, and there is no evidence to acknowledge otherwise.

Therefore, although the facts charged of this case should be pronounced not guilty on the ground that there is no proof of crime, the court below found the guilty of the facts charged of this case. The court below erred in the misapprehension of facts, which affected the conclusion of judgment.

4. Conclusion

Thus, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in this case against the defendant is as shown in the above 2. Paragraph 2., since it constitutes a case where there is no proof of facts constituting a crime as seen earlier, it is judged not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of not guilty against the defendant pursuant to Article 58(2) of the Criminal Act is to be

Judges Song Ho-ho (Presiding Judge) Daj-dong Jin-jin