Defendant 1 and 2

Prosecutor

Freeboard

Law Firm Busan (Law Firm, Attorneys Lee Yong-soo et al.)

Busan District Court Decision 2007 High Court Decision 5290 Decided April 4, 2008

The judgment of the court below is reversed.

Defendants shall be punished by a fine of KRW 500,000.

When Defendant 1 and 3 fail to pay the above fine, each of the above Defendants shall be confined in a workhouse for the period calculated by converting 60,000 won into one day: Provided, That the fractional amount shall be discarded.

1. Summary of the facts charged in this case

Defendant 1 is an employee of the Defendant Co., Ltd. (Defendant Co., Ltd., Defendant Co., Ltd., Defendant Co., Ltd., Defendant Co., Ltd., and Defendant Co., Ltd., Ltd., a mutually changed company from ○○ Co.,, Ltd., on June 27, 2005, which aims

A. Defendant 3 (Co-defendants in the original judgment of the Supreme Court) did not require any person working in a financial institution to provide any data or information on the details of another person’s financial transaction. However, Defendant 2, the husband of Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court), who is the Defendant’s mother and the husband of Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court), submitted the content of the purchase of Nonindicted Party 1’s insurance to the Busan District Court on September 23, 2004 as evidentiary materials

On October 25, 2004, around 14:23, 2004, Defendant 1, an employee of the above branch, at the written branch of the ○○ Insurance Co., Ltd. (former trade name: Defendant Co., Ltd.) located in Busan Seo-dong, Busan, demanded the provision of information on the financial transaction of Nonindicted 1 by requesting the confirmation of the details of Nonindicted 1’s insurance coverage;

(b) Defendant 1’s employee in a financial institution may not provide or divulge to another person information or data on the contents of the financial transaction without the person’s written request or consent;

At the same time and place as above, upon receiving a request from Defendant 3 to verify the details of insurance coverage in which Nonindicted Party 1 is a contractor, Nonindicted Party 1 is called “securities number (Omission), new family welfare guarantee, insurance premium 1,55,115 won, contract date, November 4, 1993; November 4, 1993; the due date; November 4, 1998; the due date; the due date; November 4, 1998; the due date; and December 30, 1996; total 1,55,115 won; the contractor’s name; the contractor’s name; Nonindicted Party 1; the insured’s name; the basic refund rate of the matters to be paid; KRW 1,986; KRW 857; KRW 857; KRW 514; KRW 191; KRW 404; and KRW 194; and information on financial transaction information; Defendant 1 and/or the details of the financial transaction information request;

C. Defendant Co., Ltd.:

Defendant 1, who is an employee of the defendant, provided financial transaction information or data to others without obtaining written request or consent from the holder of the title deed in connection with the business of the defendant company.

2. The judgment of the court below

The issue in the facts charged of this case is whether “the details of Non-Indicted 1’s insurance coverage” is “financial transactions” under Article 2 subparag. 3 of the former Act on Real Name Financial Transactions and Confidentiality (amended by Act No. 8635, Aug. 3, 2007; hereinafter “Financial Real Name Act”), and it applies only to certain financial transactions as provided in Article 2 subparag. 2 of the Act, not to apply the Act on Real Name Financial Transactions; ② unlike the Emergency Financial Economic Order for Real Name Financial Transactions and Guarantee of Secrecy, the Act on Real Name Financial Transactions and Guarantee of Secrecy, excludes “insurance premium” from “financial assets”; ③ the enactment of the above Act upon abolition of an emergency financial economic order and enactment of the above Act, it appears that the insurance contracts whose real name is verified by the relevant provisions of the Insurance Business Act can be excluded from real name verification, taking into account inconvenience in the process of implementing the above emergency financial economic order, and thus, it cannot be deemed that the above insurance contracts do not constitute an insurance contract’s financial transaction secret or insurance policy without consent.”

Thus, even if Defendant 1 provided Defendant 3 with the content of the purchase of Nonindicted Party 1’s insurance without the written demand or consent from Nonindicted Party 1 upon Defendant 3’s request, so long as the details of the purchase of Nonindicted Party 1’s insurance do not constitute “financial transactions” as defined in Article 2 subparag. 3 of the Act on Real Name Financial Transactions, the instant facts charged against the Defendants constitute a case where there is no proof of the crime without any need to further examine the remainder of the facts charged. Accordingly, Defendant 1 acquitted the Defendants pursuant to the latter part of Article 325 of the

3. Summary of grounds for appeal;

The term "insurance coverage details" of this case includes securities number, type of insurance, insurance premium, date of contract, date of deposit, date of maturity, date of maturity, policyholder's name and resident registration number, name and termination date, policyholder's name and payment amount, basic refund, interest rate guarantee, time dividends, and dividends, and actual payment amount. Such information is information about "money," etc. handled by the "insurance company" as provided for in subparagraph 3 of Article 2 of the Act on Real Name Financial Transactions. Defendant 3 requested the defendant corporation to provide the insurance coverage details of the non-indicted 1, and Defendant 1 provided the defendant 3 with the insurance coverage content in the non-indicted 1's name without the non-indicted 1's written request or consent. Thus, the defendants' act violated the duty of confidentiality of financial transactions as provided for in Article 4 (1) of the Act on Real Name Financial Transactions. Thus, the court below erred in the misapprehension of legal principles by misapprehending the legal principles on the grounds that the insurance coverage content of this case does not constitute "financial transactions" as provided for in the Act.

4. Judgment of the court below

As determined by the court below, penal provisions shall be strictly interpreted and applied in accordance with the language and text, and they shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant, but in interpreting penal provisions, the teleological interpretation in light of the legislative intent and purpose, legislative history, etc. of the law shall not be excluded unless they go beyond the ordinary meaning of legal text (see, e.g., Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002; 2002Do2363, Jan. 10, 2003).

(3) Under the above premise, the Financial Transactions Act was established for the purpose of realizing economic justice and promoting the sound development of the national economy by providing information on financial transactions under the Act on Real Name Financial Transactions without the consent of the said Act. The definitions of the Act include an insurer under the Insurance Business Act. The term “financial assets” includes money and securities, such as deposits, installment savings, deposits, bonds, beneficial rights, checks, debts, and others similar thereto which are handled by financial institutions, and thus, the term “financial transactions” is not necessarily subject to the Financial Transactions Act, and thus, it is difficult to view the term “financial transactions” as being carried out under the Act on Real Name Financial Transactions without the consent of the said financial institutions as being subject to the requirement of the Act on Real Name Financial Transactions and Guarantee of Secrecy, and thus, it is difficult to view the term “financial transactions” as being subject to the necessity of the Act on Real Name Financial Transactions and Guarantee of Secrecy, even if there is no need for the provision on the Real Name Financial Transactions under the Act on Real Name Financial Transactions and Guarantee of Secrecy.”

Furthermore, in full view of the evidence duly adopted and examined by the court below, in order to submit the records of the lawsuit that was in progress with Nonindicted Party 1, Defendant 3, who is an employee of the Defendant Company, requested the confirmation of the details of the instant insurance transaction in the name of Nonindicted Party 1, who was unaware of Nonindicted Party 1 himself, and accordingly, Defendant 1 and Defendant 1 can sufficiently recognize the fact that the instant financial transaction information was provided to Defendant 3 without the written demand or consent of Nonindicted Party 1, the nominal owner.

Therefore, the judgment of the court below which acquitted the Defendants is erroneous in the misapprehension of the legal principles as to the security of secrets of the Act on Real Name Financial Transactions and the principle of no punishment without the law, and the prosecutor's above assertion pointing this out

5. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following decision is rendered through pleading.

Defendant 1 is an employee of the Defendant Company, and the Defendant Company was a company with a mutual change from ○○○ Stock Company on June 27, 2005, whose purpose is an insurance business that can be run under the Insurance Business Act;

A. Although Defendant 3 was unable to demand a person working in a financial institution to provide data or information on the details of another person’s financial transaction, Defendant 3 is willing to submit the content of the purchase of Nonindicted Party 1 as evidence of the lawsuit filed against the Defendant, etc. at the Busan District Court on September 23, 2004, which was filed by Nonindicted Party 2, the husband of Nonindicted Party 1, who was the Defendant’s living together and the husband of Nonindicted Party 1,

On October 25, 2004, around 14:23, 2004, Defendant 1, an employee of the above branch, at the written branch of the ○○ Insurance Co., Ltd. (former trade name: Defendant Co., Ltd.) located in Busan Seo-dong, Busan, demanded the provision of information on the financial transaction of Nonindicted 1 by requesting the confirmation of the details of Nonindicted 1’s insurance coverage;

(b) Defendant 1’s employee in a financial institution may not provide or divulge to another person information or data on the contents of the financial transaction without the person’s written request or consent;

At the same time and place as above, upon receiving a request from Defendant 3 to verify the details of insurance coverage in which Nonindicted Party 1 is a contractor, Nonindicted Party 1 is called “securities number (Omission), new family welfare guarantee, insurance premium 1,55,115 won, contract date, November 4, 1993; November 4, 1993; the due date; November 4, 1998; the due date; the due date; November 4, 1998; the due date; and December 30, 1996; total 1,55,115 won; the contractor’s name; the contractor’s name; Nonindicted Party 1; the insured’s name; the basic refund rate of the matters to be paid; KRW 1,986; KRW 857; KRW 857; KRW 514; KRW 191; KRW 404; and KRW 194; and information on financial transaction information; Defendant 1 and/or the details of the financial transaction information request;

C. Defendant Co., Ltd.:

Defendant 1, who is an employee of the defendant, provided financial transaction information or data to others without obtaining written request or consent from the holder of the title deed in connection with the business of the defendant company.

1. The defendants' partial statement in the original judgment

1. The court below's oral statement of the witness non-indicted 1

1. The defendant 3's partial statement in the original trial

1. Some statements in the suspect examination protocol of Defendant 3 prepared by the public prosecutor;

1. The written inquiry into the details of the insured on October 25, 2004, and the claim and receipt on December 30, 1996; and

1. Inquiries into whether a certificate of seal imprint is issued;

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

(a) Defendant 1 and Defendant 3: Articles 6(1) and 4(1) of the former Act on Real Name Financial Transactions and Confidentiality (amended by Act No. 7189, Mar. 12, 2004; hereinafter the same shall apply)

B. Defendant Stock Company: Articles 8, 6(1), and 4(1) of the former Act on Real Name Financial Transactions and Confidentiality (Selection of Fines)

1. Detention in a workhouse (Defendant 1, 3);

Articles 70 and 69(2) of the Criminal Code

Judges, if any, (Presiding Judge)