Defendants are not guilty.

1. No person who has the gist of facts charged shall transfer or acquire a means of access used to secure the authenticity and accuracy in electronic financial transactions.

A. On December 22, 2011, Defendant A transferred the means of access, such as passbook E and withdrawal card, by delivering to Kwikset service, the name of the lender who misrepresented him/her in front of his/her residence in Seongbuk-gu, Sungnam-si, and the name of the lender cannot be identified.

B. At around 14:00 on December 28, 201, Defendant B transferred the means of access, such as the one’s own account (Account Number: H) withdrawal card, to Kwikset Service, by delivering the name of the lender to a person who was not aware of the false name of the lender in front of the door of G Hospital located in Makset-si F.

2. Determination

A. In light of the following: (a) the term “transfer” generally refers to the act of transferring the right, goods, etc. to another person; (b) the interpretation of penal provisions must be strict; and (c) excessively expanded or analogical interpretation of the meaning of penal provisions to the disadvantage of the defendant is not permitted under the principle of no crime without the law; (d) the transfer and lease under the Civil Act are treated as separate concepts; and (e) the amendment of the Electronic Financial Transactions Act (Act No. 9325 of Dec. 31, 2008) to actively cope with the crime using the so-called “large passbook” (Article 6(3)2 and Article 49(4)2) of the former Electronic Financial Transactions Act (amended by Act No. 9325 of Dec. 31, 2008). In light of the foregoing, it is reasonable to deem that the “transfer” merely means of access or temporary lending is not included in the act of lending or temporary lending the means of access.

Supreme Court Decision 2011Do16167 Decided July 5, 2012