[1] The meaning of "transfer" as a means of access subject to punishment under Article 49 (4) 1 of the Electronic Financial Transactions Act, and whether the act of providing a means of access without compensation is included in this case where the possibility of exclusive use is not definitely transferred because it is limited (negative)

[2] The case holding that in a case where the Defendant’s act was difficult to deem that the Defendant’s act constitutes “transfer” of the means of access as provided by Article 49(4)1 of the Electronic Financial Transactions Act, and it is difficult to deem that the Defendant had criminal intent to “transfer the means of access” at the time of the act, in a case where the Defendant’s act was committed by transferring the means of access, etc. to the Defendant’s account in the name of the Defendant under the Plaintiff’s name, and the loan was executed upon the Defendant’s transfer of the means of access, etc.

[1] The term "transfer" under Article 49 (4) 1 of the Electronic Financial Transactions Act means the acceptance that only the transferee can use "exclusive use of the means of access without a certain period" against the relevant account and the provision of the following means to the effect that the transfer of the exclusive use of the means of access is included not only in the means of access but also in various information, such as electronic information, user numbers, life information, and passwords (it cannot be interpreted as the same concept as the transfer of the general goods or the right to dispose of the rights). Therefore, in cases where the exclusive use of the means of access has not been finally and conclusively transferred because of the restriction of the period among the act of providing the means of access without compensation, it cannot be included as the concept of "transfer" under Article 49 (4) 1 of the Electronic Financial Transactions Act at least, regardless of whether it is included in the concept of "free lease" or "Delegation for use."

[2] The case reversing the first instance judgment convicting the Defendant ex officio and acquitted on the ground that it is difficult to see that the Defendant’s act merely delegated the means of access for temporary use of the means of access to the means of access for the purpose of the loan, and it is hard to see that the Defendant had a criminal intent to “transfer the means of access” under Article 49(4)1 of the Electronic Financial Transactions Act, on the ground that the Defendant’s act was a conclusive transfer of exclusive availability of the means of access to the means of access, and it was difficult to see that the Defendant had a criminal intent to “transfer the means of access” at the time of the act, on the ground that the Defendant’s act was committed by transferring the deposit passbook, cash card, and password, etc., which is the means of electronic financial transaction in the Defendant’s name.

[1] Article 6(3)1 and 2 of the Electronic Financial Transactions Act, Article 49(1)5, Article 49(4)1 and 2 of the Electronic Financial Transactions Act, Article 8 of the Enforcement Decree of the Electronic Financial Transactions Act / [2] Articles 6(3)1 and 49(4)1 of the Electronic Financial Transactions Act, Articles 325 and 364(2) and (6) of the Criminal Procedure Act

Defendant

Defendant

Gangwon-rayia

Seoul Northern District Court Decision 2010Gohap4128 decided April 5, 2011

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

The sentence imposed by the court below is too heavy.

2. Summary of the facts charged and the judgment of the court below

Around August 10, 2010, the defendant convicted of the facts charged that "the defendant transferred a deposit passbook [the Agricultural Cooperative account (Account No. 1 omitted), credit union account (Account No. 2 omitted), post office account (Account No. 3 omitted)] and each cash card and password, which are the means of electronic financial transactions in the name of the defendant in front of the defendant's residence in Ulsan-gu defense Dong-dong, Ulsan-gu, Seoul, with evidence of the court below's holding that "the defendant was guilty."

3. Judgment of party members

Before the judgment on the grounds for appeal by the Defendant, the Defendant asserts to the effect that a credit loan is possible if the passbook was delivered to the facts charged that the Defendant would go beyond it (it is reasonable to view that, even if the Defendant had used the expression “transfer”, such act is an ordinary ordinary expression on facts that the Defendant transferred the passbook, etc. and notified the password, etc. thereof). We examine ex officio whether the Defendant’s assertion is acknowledged, and if recognized, whether such act can be punished by deeming it as “transfer” under Article 49(4)1 of the Electronic Financial Transactions Act.

(a) The provision of the Electronic Financial Transactions Act: hereinafter omitted;

B. Concept of transfer of means of access

Article 49(4)1 of the Electronic Financial Transactions Act provides that “a person who transfers a means of access,” and Article 49(4)2 of the same Act provides that “a person who lends a means of access in return for consideration” shall be punished. However, the interpretation of penal provisions should be strict, and it is not permissible to expand or analogically interpret the meaning of an express provision to the disadvantage of the defendant. We examine the concept of “transfer” as referred to in the above penal provision.

(1) The Electronic Financial Transactions Act separates between “transfer” and “lease”, i.e., lending free of charge, excluding lending without compensation. As seen above, the grounds for punishing lending with compensation have been amended by Act No. 9325 on December 31, 2008. Meanwhile, Article 49(1)5 of the same Act provides that “a person who uses a means of access acquired by deceiving a person shall be punished by imprisonment with labor for not more than seven years or by a fine not exceeding 50 million won.” On the other hand, Article 4(4)1 of the same Act provides that “a person who transfers or acquires a means of access shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding twenty million won without distinction between “a person who acquires a means of access” and “a person who acquires a means of access” shall be punished by deception and “a person who acquires a means of access by acquiring it by transfer” rather than “a person who acquires it by transfer” and “acquisition” as “acquisition”, instead of “acquisition” under Article 8 of the Enforcement Decree.

(2) First of all, in light of the amendment process of the penal provision of the Electronic Financial Transactions Act and the differential penal provision, etc., there was an attempt to punish the user who acquired the means of access by unlawful means and ultimately prevent social harm and injury to the use of the means of access. However, the existing penal provision alone is interpreted to extend the scope of punishment so that a person who acquired and used the means of access can be punished for a monetary loan to the minimum necessary extent that it is difficult to achieve the legislative purpose due to changes in the provision of the means of access. On the contrary, regarding the punishment of a person who acquired and used the means of access, in particular, with regard to the case of deception, the possibility of transfer of the means of access through various methods, such as transfer, lease, pledge, security, delegation for use, etc. by deceiving the holder, the term “acquisition

In full view of the history and legislative purport of the provisions of the Electronic Financial Transactions Act, the overall regulatory form, attitude, and language and text regarding the acts subject to punishment as seen above, insofar as there is no ground for punishment through the amendment of the Act, the head of a bank in the name of another person may not include in the concept of "transfer" all the lending of money which is less likely to be criticized than the lending of money in terms of the recipient of the means of access by emphasizing the necessity to prevent the harm of the head of a bank in the name of another person to be used as the account for various criminal acts that are called as "phishing" or the gap in punishment.

(3) As seen earlier, “transfer” of the means of access subject to punishment is bound to be interpreted by limited interpretation. In other words, “transfer” under Article 49(4)1 of the Act refers to the acceptance that only the recipient can use “exclusive use of the means of access without any restriction on the period” and the provision of the following means: (a) it is reasonable to deem that the transfer of exclusive use of the means of access refers to the definitive transfer of the means of access (including not only goods but also various information such as electronic information, user numbers, physical information, passwords, etc.). Thus, “transfer” under Article 49(4)1 of the Act cannot be interpreted as the same concept as the transfer of ownership or right to dispose of the means of access without compensation, regardless of whether the transfer of exclusive use of the means of access does not reach the fixed position of “free lease” or delegation for use” cannot be included in the concept under Article 49(4)1 of the Electronic Financial Transactions Act.

C. Judgment of party members on the facts charged by the defendant

(1) The record reveals the following circumstances: ① (i) five accounts, including the Defendant, including Nonindicted 1, 2, 3, and 4, including Nonindicted 5, including the Defendant, were used for the crime of “scaming” committed against Nonindicted 5, the name of the victim; (ii) the above five persons stated in the police that “where the head of a passbook and a cash card are created and sent to him/her, the head of the passbook and the card was possible to grant a loan, and the password was also known,” and (iii) the above five persons stated in the police that “the means of access was sent only if the recipient of the loan was avoided, and there was no difference between the recipient of the loan and the receipt of the payment; and (iv) the Defendant returned the passbook and the card to the bank when the loan was made; and (iii) the Defendant appears to have received the loan from the bank as the Defendant, and it is difficult for the prosecutor to return the passbook’s name and the password to the account holder’s name after the loan was made.”

(2) As above, as long as the circumstance in which the Defendant transferred the means of access to a lender’s name is necessary by the person who pretended to transfer the means of access to the lender, the passbook, card, and password, etc. shall be returned later and later. As such, the Defendant’s above act appears to have delegated the temporary use of the means of access for the purpose of lending. It is difficult to view that the Defendant’s act constitutes “transfer of the means of access” under Article 49(4) subparag. 1 of the Electronic Financial Transactions Act when the possibility of exclusive use of the means of access is definitely transferred. Furthermore, it is difficult to view that the Defendant had a criminal intent to “transfer the means of access” under the above subparag. 1 at the time of the above act.

4. Conclusion

Therefore, the judgment of the court below is reversed ex officio pursuant to Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed and it is decided as follows through pleading.

The summary of the facts charged of this case is the same as the above stated in the summary of the facts charged and the judgment of the court below. For the same reasons as seen earlier, the facts charged of this case constitutes a case where there is no proof of crime, and thus, not guilty under the latter part of Article 325

Judges Lee Jae-sung (Presiding Judge)

Note 1) There was no penal provision regarding “loan” at the time of the enactment. In the amended bill (amended by Act No. 9325, Aug. 18, 2008) proposed by the National Assembly, Article 6(3)2 of the Act, “The act of lending or lending the means of access (hereinafter “illegal lending”) with the aim of taking advantage of the circumstances of the lending person, while taking advantage of the circumstances of the lending person, with the aim of taking advantage of the lending person’s profit, was amended as stipulated in the current law.