(영문) 서울중앙지방법원 2019.2.13. 선고 2018고합1099 판결

Cding is a kind of electronic currency recorded in a computer, etc. and traded through the Internet without realizing it, which is operated by a diversified system using block chain technology, and representatively, bitcos, bitcos, and ion, etc.

자체 블록체인 플랫폼을 구축한 암호화폐를 '코인'이라고 부르고, 코인과 달리 자체 블록체인 플랫폼을 구축하지 못해 이더리움, 퀸텀 등 다른 암호화폐의 블록체인 플랫폼을 차용하는 암호화폐를 '토큰'이라고 하는데, 토큰인 상태로도 코인과 교환이 가능하다.

B The token is the token manufactured by using the Ecrypt chain platform, which is the first issue around January 22, 2018 by C Limited Liability Company (hereinafter referred to as "C") and listed on the Hong Kong Ecding Exchange (hereinafter referred to as "E Exchange") operated by D Limited Liability Company (D) on May 22, 2018.

C B B, before listing the token, prior to the listing, C had contributed to the establishment, development, and listing of the token, or wanting to make investment by recognizing its value, the so-called â€˜the so-called â€˜B to sell the token' at the discount of B under the condition of marketing prevention for three months after listing for those who want to be able to make investment, and transmitted to investors who purchased B to FO the token through the FO, which can manage and keep the token, and take technical measures to prohibit all token sold for a period of three months after listing.

【Criminal Facts】

The Defendant purchased 6,788,382 token on January 22, 2018, which is the period of brooms, and kept in F.

Around May 21, 2018, the Defendant: (a) was sharing information on encryptions with other investors in a group or reading room, on May 21, 2018, when the sunken was listed in the E Exchange; (b) the Defendant attempted to transmit 676 to the account opened in the E Exchange, which was administered by investors H, and 676 to the account opened in the E Exchange; (c) as transmission was actually made, 676 to the said account was created; and (d) on the other hand, the number of tokens currently stored in the F remains without a decrease in the number of tokens. Accordingly, the Defendant became aware of any error in the E Exchange, etc. system.

Using the aforementioned system error, the Defendant created B to the E Exchange account without any actual transmission of B token under the conditions of prohibition of sale for three months after the listing kept in the Defendant F, without any transmission of B to the E Exchange account, by continuously attempting to transmit the B to the E Exchange account, and then, he was willing to exchange B to the E Exchange (BTC) such as BTC, and to encash, etc. at the domestic exchange.

At around 17:41 on May 21, 2018, the Defendant, despite being aware of the fact that a sunken area was prohibited from trading at a non-displace in Seoul, Incheon, or lower place, visited the Defendant F, and entered, in the transmission column, the Defendant: (a) entered the Defendant’s address in the account address of the Defendant’s E Exchange and the number of 1,00,000,000 of token; and (b) character the transmission column into the information processing device, such as the E Exchange’s computer operated by the victimized company using the aforementioned system error, entered the wrongful order to create the B to be subconced in the said account of the E Exchange in a way that would be 1,00,000 B to be subconced.

As a result, the Defendant entered the improper order into the E Exchange’s computer and other information processing devices, thereby creating B to B to the above account (17,000,000, market price of 17,000,000,000). From around that time to May 18, 2018, the Defendant interfered with the business of arranging encryption transactions of the E Exchange operated by the damaged company by creating a total of 883,880,00, and a total of 12,136,087,640, and a total of 186,00,000, as in the list of crimes in the same way, from around 18:16 to May 23, 2018.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness J;

1. Each part of the protocol of examination of the accused by the prosecution against the accused (including each substitute part);

1. Each police interrogation protocol of K, L, M, N,O, P, Q, R, T, U,V, W (including the large part), X (including the large part), and H;

1. 진정서, B 백서, G 내용, 각서, 토큰 시세에 관한 설명, 피진정인들의 B 토큰 복제 과정 설명자료, B 토큰 장외거래 가격, A의 지갑으로부터 E 거래소로 복제된 내역, E 거래소에서의 출금 내역, 거래중지 원인, 피의자의 G 내역, E 거래소의 상장가 결정 및 당시 장외거래 가격 현황, 매매 내역, 이체 관련 도식도, A의 허위 24개 계정의 B 토큰 전송 및 거래소 밖 인출 내역 등, 52개 계정 관련 자료(계정 내역, 동 시매매 내역), 접속 IP 정리, 피의자 접속 로그기록, 전송 내역 등, B 토큰 복제 과정 스크린샷, 부정거래 도식도, A의 차명계좌 내역, E 거래소 제공 부정거래자 B매도 내역(수정), 피의자 이더스캔 내역, B 토큰 전송한 인원 목록, 피진정인별 복수의 E 거래소 계좌 계설 내역, 진정인 의견서, A의 B 토큰 구매 내역, A이 B 토큰을 분배받은 내역 1·2, E 거래소의 B 시가(BTC) 및 AA 거래소의 BTC 시가 (KRW) 각 1부, Y의 2조합 계좌 거래내역 1부, AA 거래소의 비트코인(원) 시가자료 1부, E 거래소의 B 토큰[비트코인(BTC)] 시가자료 1부, 범죄일람표(수정본) 1부, A의 모·Y의 각 AB 계정 거래내역

Application of Statutes

1. Article applicable to criminal facts;

Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347-2 of the Criminal Act, Article 314(2) and Article 314(1) of the Criminal Act (a) of the Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (the punishment provided for in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. Selection of punishment;

Optional of limited imprisonment

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act provides the grounds for conviction

1. Summary of the defendant's assertion

A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1) In accordance with normal procedures, the Defendant entered a transmission order with respect to B token kept in F, and did not operate a program or order that constitutes the E Exchange’s processing system or actively use the error of the said system, and thus, the Defendant’s act of inputting the transmission order does not constitute an entry of an unlawful order as referred to in the crime of fraud by using computers, etc. under the Criminal Act.

2) It is merely an entry of a book without the transfer of a real coding, which is indicated in the E Exchange account of the Defendant, etc., and there is no property value. The Defendant acquired another coding using the above entry on the E Exchange, and transmitted it to the domestic coding Exchange, but the profits therefrom are not directly acquired in the process of processing information by computers, etc., but are profits acquired through a separate exchange, and thus, the crime of fraud by using computers, etc. is not established.

3) In the account book of the E Exchange does not cause any damage, and only by the Defendant’s transaction with a third party by using an erroneous indication on the account book, the damage to the said third party arises. Thus, the victim of the instant case should be deemed a third party, not an E Exchange, but a transaction with the Defendant.

4) It is unreasonable to regard the value of the sunken B points prior to the listing price as 17 won listed on the basis of over-the-counter trading, the transaction volume of which is low, and calculates the profits acquired by the Defendant.

(b) Degree of interference with business, such as computers;

1) When the Defendant entered a transmission order to the token for which prohibition of sale has been established, it cannot be deemed that the act of entering an unjust order or that caused trouble by affecting the operation of the information processing system of the Exchange.

2) The information processing unit, such as a computer, of the exchange, could not deal with the outcome value as to whether transmission of the token was made from the beginning. Thus, the Defendant’s act did not interfere with the information processing unit of the exchange.

2. Determination

A. In full view of the various evidence duly admitted and investigated by the court, the following facts and circumstances can be revealed.

(i)the system error of the E Exchange and the false creation of token;

A) On January 2018, the Defendant purchased 6,788,382 token, which was aware of the price of a sunken area from a group or reading room of the crypt investors at the end of the end of the month, and kept in his Frops 6,78,382, which was subject to the condition of prohibition of sale for three months, out of the frobbs at the time through X.

B) On May 21, 2018, at around 16:30, the Defendant listened to the statement that, if transmitted to the E Exchange account of “B token that was launched from H, it would not decrease the existing B to the E Exchange, but would have been created as if it was actually transmitted to the Exchange account,” and immediately thereafter, from 17:41 on the same day to 18:16 on the same day, the Defendant created 83,880,000 to the E Exchange account in the name of the Defendant, etc., 186 in total, 186.

C) The AC5, which is a B token transmission program installed in F, indicates, first of all, whether the transmission program has been implemented with respect to the token transmission order, and then indicates, at a price/false value, whether the transmission order has been successful due to additional verification established in the program. Therefore, if transmission order is entered into B token on which conditions are established, the transmission program has not been actually transmitted but has not been actually transmitted due to the condition of the prohibition of sale, and the actual transmission has been indicated as Scces and false. However, the E Exchange system only performed the function of processing only (Scces) as to whether the transmission order has been successful, because it did not meet the function of processing the transmission order, thereby recording that the transmission order has been transmitted to B to the account A while there was no change in balance.

(ii)the method of exchange and other trading at the Cding Exchange;

A) The Cding Exchange is a business entity that arranges the transaction of encryption through the receipt, conclusion, and liquidation of a trading order, while keeping cash and encryption from many unspecified customers, and functions as a business entity that arranges the transaction of encryption. In ordinary cases, the Cding Exchange is obligated to make the customer first create an account in the Cding Exchange and deposit the money into the designated account, send the money to the electronic sheet, and then allow the customer to trade the cding within the transaction system, and pay or deliver the money or encryption held in the account to the customer at any time within the balance to the extent of the transaction system.

B) The transaction at the Cding Exchange is operated in a way that records, processes, and keeps only the balance of customers and the details of contracts in the electronic computer system of the Exchange without being recorded in the actual financial account or the block chain network for the reduction of time. From the perspective of customers, the customers are bound to believe the information posted on the transaction system provided by the Exchange as it is and decide whether to trade the encryption, conclude the contract, and deliver it based on the information. The J, which is CIO (the highest investment officer), stated in this court that the E Exchange traded in the above way and stated that it had caused the occurrence of the instant case (J 24 pages of the examination record).

(iii) the exchange, etc. ofkens falsely created;

A) On May 22, 2018, immediately after the listing of 527,532,476 of the tokens created falsely as above, the E Exchange exchanged from 15:11 to 16:45 of the same month to 18:45 of the same month from 15:11 on May 22, 2018, to 18:6.9 BTC (Noncoin), 6.6412 ETH (Decoin), 79.582 BCH (non-tecoin capital) was transmitted to a domestic exchange, and was exchanged as KRW 1,816,175,325 of the same month (6).

B) On May 23, 2018, the Exchange became aware of the aforementioned illegal transactions, and immediately concluded an account suspected of illegal transactions, including the Defendant’s account, and suspended the transaction of B token. Since then, the Exchange resumed the transaction by borrowing 400 million to B from C without compensation.

C) Meanwhile, the price of a sunken area listed on the E Exchange is 0.00000018BC (C) and the price of the sunken area listed on the E Exchange was 0.0000185BC (C). On May 22, 2018, 16:00, immediately after the listing price was 0.000002BC (C) and 0.0000002BC (C). Since then, it maintained the degree of 0.004 BTC or 0.00007 BTC (C. 3.7-6.5) until the suspension of trading.

B. Specific determination

1) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A) Whether it constitutes an "influence of an unlawful order"

(1) Article 347-2 of the Criminal Act punishs a person who acquires, or causes a third party to acquire, pecuniary benefits by inputting, false information or improper orders in a computer or any other information processing device, or by making another person process information without authority. Here, “information of an unlawful order” refers to an act of inputting an order that should not be given in light of the purpose of processing affairs set forth in the relevant information processing system (see, e.g., Supreme Court Decision 2008Do128, Sept. 9, 2010). Therefore, even if “information of false information” is not a case in which individual orders constituting the program of the relevant information processing system were improperly modified or deleted, as well as an act of actively using errors arising from the program to perform the improper administrative affairs in light of the purpose of processing the affairs (see, e.g., Supreme Court Decision 201Do4404, Nov. 14, 2013).

(2) According to the above factual basis, the Defendant clearly recognizes the error that the transmission of the token was unable to process the value of the result of the success in the transmission transaction to the E Exchange System, and repeatedly enters the transmission order for the purpose of obtaining unjust profits using the aforementioned system errors, thereby creating a false B to the E Exchange account of the Defendant, etc. Therefore, such an act by the Defendant is deemed to be an act of actively using the error arising from the program itself and allowing the Defendant to conduct improper administrative affairs in light of the purpose of its administrative affairs.

B) Whether property interests have been acquired

(1) Property benefits are not necessarily effective in private law, but only factual relations that can be recognized as obtaining property benefits on external basis (see, e.g., Supreme Court Decision 93Do428, Feb. 22, 1994).

(2) Various circumstances revealed in the above facts: (i) Encrypt is an intangible asset that enables electronic transfer, storage, and transaction with the economic value digitally marked (see Supreme Court Decision 2018Do3619, May 30, 2018); (ii) the exchange transaction in the E Exchange is being operated by means of account transaction recorded only in the electronic computer system of the Exchange; (iii) so, B soken created by the Defendant is recorded in the electronic computer system of the E Exchange and becomes a situation in which it is possible to exchange with other encryptions in the Exchange; (iv) In fact, transaction participants in the E Exchange treat the above B so as to have property value; and (v) it is reasonable to view that the Defendant transmitted the above B soft to the domestic exchange after exchanging it with other encrypteds; and (v) it is reasonable to deem that it is possible to directly intervene in the above transaction with the bona fide third party in the transaction using the ecrypt, etc. in light of the fact that it is possible to directly intervene in the transaction with the above information processing system.

C) According to the above factual basis as to who is the victim of the crime of fraud, the E Exchange bears the duty to deliver or provide the transaction within the balance at any time when the defendant requests the delivery or exchange transaction of the defendant's coding balance recorded in the electronic computer system, as in other coding exchanges (in contrast, there is no legally and contractual obligation to transmit a true B to the E Exchange as the number of token created falsely in the E Exchange is found). Thus, the victim of the crime of fraud in the judgment is the E Exchange that takes the direct risk that the victim of the crime of fraud shall pay B to the last holder, etc. specified in the books of account. Even if the E Exchange actually incurred damage from the payment of B to C, it cannot be deemed that the E Exchange could transfer to C through trade terms and conditions, mutual consultation, etc.

D) the value of property gains;

(1) Property gains acquired by the Defendant are equivalent to the market price of the token that was created by the Defendant by falsity. In general, the market price means the transaction price that can be deemed to properly reflects the objective exchange value at the time of the transaction by normal means, i.e., the value that is generally recognized as a case of free transaction between unspecified persons (see, e.g., Supreme Court Decision 2005Du1202, Sept. 21, 2007).

(2) The above facts and arguments revealed as follows: ① AD, a crypt-over-the-counter transaction, which takes place between many and unspecified persons before listing, was traded in the crypt-the-counter transaction, B, etc., which takes place, and the transaction price has gradually increased from 6 to 8 won, and around listing, 15-30 won has reached the crypt-the-counter transaction, and the price was 20.8 won in one transaction, which took place after the commencement of the Defendant’s crime. ② The Exchange, which takes place over-the-counter trading, is relatively small and less and the number of trading or trading volume is less than a market value, but it is reasonable to assess the value by considering the market price of the crypt-the-counter trading, even if the crypt-the-counter trading is lacking by general and normal means (see, e.g., Supreme Court Decision 2010Du2698, Apr. 26, 2012).

2) The point of interference with business such as computers

A) Whether the case constitutes "illegal orders"

As seen earlier, as the Defendant clearly recognized that there was an error in the program of the E Exchange System, and repeatedly entered the transmission order for the purpose of acquiring unjust profits, it is evident that it constitutes a case where the “unlawful order” as referred to in the crime of interference with the business of interference with computer, etc. was entered.

B) Whether a ‘ disability' occurred or not

(1) Article 314(2) of the Criminal Act provides that "a person who interferes with another's business by destroying an information processing unit, such as a computer, or a special media record such as electronic records, or by inputting a false information or improper order into an information processing unit, or by causing interference with data processing through any other means." In order for the crime to be established, data processing device to be unable to function in compliance with its intended purpose or perform other functions differently from its intended purpose, etc. (see, e.g., Supreme Court Decision 2002Do631, Jul. 9, 2004).

(2) According to the above facts, a false B token was created in the E Exchange computer system by an illegal order entered by the defendant, and as a result, the E Exchange system misleads the above B to be a valid token and mediates a false B token transaction differently from the original purpose of use, such as a genuine coding transaction brokerage. Therefore, it is reasonable to deem that the above act of the defendant committed an obstacle to the above information processing device as a result of the above act of the defendant.

Reasons for sentencing

1. The scope of punishment by law: Imprisonment for not less than two years and not less than six months;

2. Reference to the sentencing criteria;

Although the sentencing guidelines are not applied because the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes are in a commercial competition relationship, the range of recommending punishment in the sentencing guidelines for the

(a) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

[Determination of Punishment] General Frauds No. 4 (at least five billion won, less than 30 billion won)

[Special Emotional Persons] Reductions: Where the risk of occurrence of damage is not substantially realized;

[Scope of Recommendation] Three to Six years (Discretionary) of imprisonment

(b) Interference with business affairs, such as computers;

[Determination of Types] 1 (Interference with Business)

[Special Convictd Persons] None

[Scope of Recommendation] Imprisonment of six months to one year (Basic Area)

3. Determination of sentence;

The crime of this case is 80 million won by transmitting the above to the above Exchange account by using the system error of the Cding Exchange in which the defendant who purchased and kept encrypted with the condition of prohibition of sale for three months after the listing was not able to process the value of the result of the transmission failure following the prohibition of sale, and by transmitting the above to the above Exchange account, more than 80 million won is created in the account of the defendant, etc., thereby acquiring approximately 12 billion property profits and interfering with the above Exchange's cding brokerage business. The crime of this case is heavy, and since the damage was not recovered, the crime of fraud and the crime is heavy in the fact that the damaged company wanting to punish the defendant.

However, it cannot be said that there is no responsibility for the injured company that is able to commit the crime by using the transaction system erroneous in the co-transmission program, and there is a favorable circumstance such as the fact that the actual enrode out of the false token created by the defendant is limited to about 1.8 billion won, and that there is no record of criminal punishment against the defendant.

In addition, the defendant's age, character, conduct and environment, relationship with the victim, motive and consequence of the crime, circumstances revealed after the crime, etc. shall be considered, and the same sentence as the order shall be determined.

Judges

The presiding judge and judges;

Judges Kim Young-ho

Judgment of the Prosecutor

Note tin

1) To the extent that the facts charged are identical with the facts charged and the basic facts do not pose a substantial disadvantage to the defendant’s exercise of his/her right to defense, specific facts are partially different from those

2) Token created before the listing: calculated at 17 won per unit, the market value at the time of the listing. Token created after the listing: calculated the number of bitcos corresponding to the transaction value of token B of the Exchange at the time of creation and calculated by applying the market value at the same time to the bitcos of the Korea AA Exchange at the same time.

3) The company concurrently prosecuted the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the crime of interference with business on computers, etc., but the defendant, by inputting an improper order into the data processing device such as computer, resulting in an obstacle to information processing, which led to the acquisition of property benefits. Therefore, it is reasonable to view that the two crimes constitute a commercial competition relationship that substantially satisfies

4) Generally, the transaction of decrypt trade is known to be impossible to deny or modify the transaction fact because the details are recorded in the block chain network and disclosed to all users.

5) It is an automation contract system that automatically executes the contract upon meeting the setting conditions.

6) In the prosecutorial office, the Defendant stated that the amount deposited by the Defendant is KRW 300 million, and the remaining KRW 1.5 billion is the amount deposited by the Defendant who was transferred token from the Defendant (Evidence Records 2008 pages).

7) The price calculated on the basis of 9,239,00 won at the bitco price of May 22, 2018, 16:00 of AA of the domestic coding Exchange; hereinafter the same shall apply.

8) The act of returning the current data (data) to the data at a certain point in the past when the data (data) is not effective or lost.

9) The term “cryption disclosure” means the payment of sunken points that can be exchanged to the public investors in the course of start-up based on the block chain technology in the future, and the receipt of investment in existing encryptions, such as Bitcoin and Eitcoin, or in cash, of business funds.

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률 제3조 제1항 제1호

참조판례

-대법원 1994. 2. 22. 선고 93도428 판결