Defendant

Defendant

Kim Jong-Un (Court of Prosecution) and Court of First Instance (Court of Second Instance)

Attorneys Noh Jeong-hwan (Korean)

Applicant 1 and 2 others

Applicant 1 and six others

Incheon District Court Decision 2019Da1169 Decided June 13, 2019 and 2019 early 261, 298, and 393 compensation order.

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

Seized evidence referred to in subparagraphs 1 through 4 and 8 through 10 shall be confiscated.

The charge of violating the Telecommunications Business Act is not guilty.

The summary of the judgment of innocence is publicly announced.

The defendant pays 240,000 won to 1 applicant for compensation, 350,00 won to 2 applicant for compensation, 350,000 won to 3 applicant for compensation, 350,000 won to 4 applicant for compensation, 30,000 won to 5 applicant for compensation, 300,000 won to 6 applicant for compensation, 40,000 won to 6 applicant for compensation, and 150,00 won to 7 applicant for compensation, respectively.

Each compensation order above may be provisionally executed.

1. Summary of grounds for appeal;

A. Legal principles

The defendant purchased and used a core chip, which is not a mobile phone under another person's name, and in such a case, it shall not be deemed that he violated Article 32-4 (1) of the Telecommunications Business

B. Unreasonable sentencing

The sentence of the court below (two years and six months of imprisonment) is too unreasonable.

2. Ex officio determination

In the trial of the case, the prosecutor applied for changes in the indictment with the content that changes the habitual fraud part of the facts charged in the judgment below as stated in the revised and added part of the facts charged in the judgment below, and this court permitted it and changed the subject of the judgment. Therefore, the judgment of the court below cannot be maintained. However, the argument of misunderstanding the legal principles as to the defendant's violation of the Telecommunications Business Act is still subject to

3. Judgment on the misapprehension of the legal principle of the defendant

A. Summary of this part of the facts charged

No person shall use telecommunications services provided to a mobile communications terminal in the name of another person by opening a mobile communications terminal that enters into a contract for the provision of telecommunications services, on condition that he/she provides or lends funds, or use telecommunications services for the collection of the relevant funds.

The Defendant purchased a mobile phone in the name of another person from a person who was unaware of his/her name to avoid tracking the investigation agency, etc. to use it during the crime under the above paragraph (1). On January 2019, the Defendant used 600,000 won and purchased chip from a person who was unaware of his/her name known through the Google website (on hand omitted) which was opened in the name of Nonindicted Party 1, and used chip purchased from a person who was unaware of his/her name, and from February 17, 2019 to April 2, 2019, the Defendant used the purchased USIM chip by attaching it to A8 mobile phone in his/her possession.

Accordingly, the Defendant opened a mobile communications terminal that entered into a contract for the provision of telecommunications services in another person’s name on the condition of providing funds, and used telecommunications services provided to the mobile communications terminal.

B. Determination

This part of the facts charged is that the defendant opened a mobile communications terminal which entered into a contract for the provision of telecommunications services in the name of another person on condition that he/she provides funds by purchasing and using the core chips under the name of another person and uses telecommunications services provided to the said mobile communications terminal. The applicable provisions of this case are Articles 95-2 subparag. 2 and 32-4(1)1 of the Telecommunications Business Act

However, the interpretation of penal provisions must be strict in accordance with the language and text, and for the following reasons, the mobile phone core chip shall not be deemed as a mobile communications terminal device as stipulated in Articles 95-2, 95-2, and 32-4, Paragraph 1, Item 1 of the Telecommunications Business Act.

1) Article 32-4(1)1 of the Telecommunications Business Act defines mobile communications terminal devices as “a terminal device necessary to use common telecommunications services using frequencies allocated under the Radio Waves Act”.

2) Since the Telecommunications Business Act and other Acts do not expressly define the meaning of a terminal device, the meaning of a terminal device must be inserted into the prior meaning of “a device that inputs data or output data connected with a central computer and telecommunications network,” and it is evident that there is no function to input data or output data by itself.

3) Article 9(5) of the Mobile Device Distribution Improvement Act refers to a core chip as a “deline identification cap” and regulates it separately from a mobile communications terminal device.

4) The applicable provisions of this case were newly established on October 15, 2014. However, the transfer of free communication services through the exchange of core chips became possible in a systematic and technical manner around July 2014. The legislation of the applicable provisions of this case was not properly activated until the enactment of the applicable provisions of this case. In light of this point, it is difficult to view that the applicable provisions of this case were subject to regulation by purchasing and using core chips under the name of others.

Therefore, this part of the facts charged constitutes a case where a crime is not committed, and the judgment of the court below which found the defendant guilty is erroneous in the misapprehension of legal principles as to Telecommunications Business Act, which affected the conclusion of the judgment. Thus, the defendant's assertion

4. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act without examining the grounds for ex officio reversal and the defendant's assertion of unfair sentencing is well-grounded. The part of the judgment of the court below on the defendant's case is reversed, and it is again decided as follows.

The summary of the facts charged and the evidence admitted by this court is as follows: (a) Nonindicted 3, Nonindicted 2, Nonindicted 3, Nonindicted 3, Nonindicted 2, and Nonindicted 4, Nonindicted 2, and Nonindicted 2, Nonindicted 3, and Nonindicted 4, Nonindicted 2, and Nonindicted 2, Nonindicted 4, and Nonindicted 2, Nonindicted 3, and Nonindicted 4, Nonindicted 3, and Nonindicted 2, Nonindicted 4, and Nonindicted 2, Nonindicted 5, as indicated in the judgment of the court below; (b) Nonindicted 6, Nonindicted 3, and Nonindicted 3, Nonindicted 3, Nonindicted 4, Nonindicted 4, and Nonindicted 6, Nonindicted 7, Nonindicted 6, Nonindicted 7, Nonindicted 7, Nonindicted 7, Nonindicted 8, Nonindicted 8, Nonindicted 10, Nonindicted 2, Nonindicted 14, and Nonindicted 15, Nonindicted 16, Nonindicted 14, and Nonindicted 15, Nonindicted 2, and Nonindicted 2, Nonindicted 3, and Nonindicted 4, Nonindicted 2, and Nonindicted 2, Nonindicted 16, and Nonindicted 15.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 351 and 347(1) (a) of the Criminal Act; Articles 49(4)1 and 6(3)1 (a) of the Electronic Financial Transactions Act; Articles 351 and 347(1) of the same Act; Articles 49(4)1 and 6(3)1 of the same Act

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Sentence of compensation order and provisional execution;

Articles 25(1) and 31(3) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

【Pried circumstances】 The Defendant recognized all of the instant crimes.

[Unfavorable circumstances] Although the Defendant had been subject to punishment for multiple types of frauds, such as punishment two times, the Defendant started to commit each of the crimes of this case on a 20-day basis as to whether he was released from prison without being aware of the period of repeated crime, and on a 20-day basis. The Defendant committed the crime against many unspecified victims via the Internet, and during that process, the crime is very poor, such as using the so-called largephones and passbooks. The total amount of damage exceeds 30 million won, and the victim reaches 114 persons. The Defendant spawn most of the damage amount on the Internet gambling, and neglected to make efforts to recover the victims’ damage up to the trial.

As such, the sentencing grounds revealed in the proceedings of this case, such as the defendant's age, character, conduct, family relationship, environment, etc., shall be determined as per the disposition.

Of the facts charged in the instant case, the summary of the violation of the Telecommunications Business Act is as 3. A. B., which constitutes a case that does not constitute a crime as seen in the above 3.b., and thus, the Defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is publicly notified pursuant to Article 58(2) of the Criminal Act.

[Attachment]

Judges Yang Jae-ho (Presiding Judge)