The meaning of “lending a means of access” under Article 6(3)2 of the Electronic Financial Transactions Act / Whether an act of lending a deposit passbook to a third party to allow the third party to conduct electronic financial transactions using electronic information contained in a marina belt attached to the deposit passbook while receiving, demanding or promising the third party to give, receive, or promise the consideration constitutes lending the means of access (affirmative), and whether the act of allowing the third party to take pictures of a face containing an account number stated in the deposit passbook constitutes lending the means of access (negative)

The purpose of the Electronic Financial Transactions Act (hereinafter “Act”) is to ensure the safety and reliability of electronic financial transactions by clarifying the legal relationship of the electronic financial transaction (Article 1); prohibit “the act of lending a means of access while receiving, demanding or promising the payment” (Article 6(3)2); and punish a person who lends a means of access in violation of such prohibition (Article 49(4)2).

Here “Access media” refers to any means or information falling under any of the following subparagraphs (Article 2 subparag. 10 of the Act) among the user numbers registered with a financial company or an electronic financial business entity, user’s biological information [titled], (a) or (b) of the user’s passwords necessary to use any means or information under a contract entered into with a financial company or an electronic financial business entity for electronic financial transactions (hereinafter “electronic financial transaction contract”) in order to make a transaction request or to secure the authenticity and accuracy of the user and the transaction details; (b) digital signature creating key under Article 2 subparag. 4 of the Digital Signature Act and the certificate under subparagraph 7 of the same Article [b]; and (c) of the same Article; and (e) the term “user” means a person who uses an electronic financial transaction pursuant to a contract entered into with a financial company or an electronic financial business entity for electronic financial transactions (hereinafter “electronic financial transaction contract”); and (c) the term “user’s transaction request” means a person who instructs a financial company or electronic financial business entity to process the electronic financial transaction pursuant to the electronic financial transaction contract (Article 17).

According to the language and content of such provision, “loan of access media” under Article 6(3)2 of the Act refers to an act of lending a means of access to make another person temporarily use the means of access without managing and supervising the user of the means of access while receiving, demanding or promising payment. The function of the means of access in a deposit passbook that includes the function of electronic financial transaction is a mabic belt attached to the passbook. As such, if a user, while receiving, demanding or promising payment, lent a deposit passbook so that he/she can conduct electronic financial transactions using electronic information contained in the Mabic belt attached to the deposit passbook to a third party, he/she constitutes lending of the means of access. However, unless it is merely impossible to use the means of access as intended, this cannot be deemed as a lending of the means of access.

Article 1, Article 2 Subparag. 7, 10, 17, Article 6(3)2, and Article 49(4)2 of the Electronic Financial Transactions Act

Defendant

Prosecutor

Attorney Hong Sung-hoon

Incheon District Court Decision 2015No4171 Decided May 25, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. misunderstanding of legal principles as to the lending of means of access

A. The purpose of the Electronic Financial Transactions Act (hereinafter “Act”) is to ensure the safety and reliability of electronic financial transactions by clarifying the legal relationship of the electronic financial transaction (Article 1), prohibit “the act of lending the means of access while receiving, demanding or promising the payment” (Article 6(3)2), and punish any person who lends the means of access in violation of such prohibition (Article 49(4)2).

Here "Access media" means any means or information falling under any of the following (Article 2 subparagraph 10 of the Act) among the user numbers (c) registered with a financial company or an electronic financial business entity, user's bio-information [d], (a) or (b) or the means or information necessary to use the user's bio-information [d], (a) or (b) in order to make a transaction request in an electronic financial transaction or to secure the authenticity and accuracy of the user and the transaction details; (b) electronic card or other similar electronic information [d]; (c) electronic signature creating key as defined in Article 2 subparagraph 4 of the Digital Signature Act and the certificate as defined in subparagraph 7 of the same Article (b) of the same Act; and (d) a "user" means a person who uses an electronic financial transaction pursuant to a contract entered into with a financial company or an electronic financial business entity for an electronic financial transaction (hereinafter referred to as "electronic financial transaction contract"); and (e) a "user's transaction request" means a person who instructs a financial company or electronic financial business entity to process in accordance with the electronic financial transaction contract (hereinafter.

According to the language and content of such provision, “loan of access media” as stipulated under Article 6(3)2 of the Act refers to the act of lending the means of access so that any other person may temporarily use the means of access without managing and supervising the user of the means of access while receiving, demanding or promising the payment. The function of the means of access in a deposit passbook that includes the electronic financial transaction function is a marina magnetic belt attached to the passbook. As such, if a user lends a deposit passbook so that he/she can conduct electronic financial transactions using electronic information included in the magnetic belt attached to the deposit passbook to a third party while demanding or promising the third party to receive, demand or promise the payment, the lending constitutes the lending of the means of access. However, if it is merely impossible to use the means of access as intended, this cannot be deemed as the lending of the means of access.

B. Review of the lower judgment and the record reveals the following facts.

(1) On March 18, 2015, the Defendant received a text message, “Is to KRW 3 million per month,” and the detailed contents,” and was proposed that “Is to pay a premium from a person who introduced himself/herself as the Kim head of the non-indicted corporation’s Kim head by telephoneing on his/her number, and “Is to pay a fixed fee at the face of the day when Is to withdraw money in the name of the Defendant’s passbook.”

(2) On March 19, 2015, the Defendant, on the part of 12:00 on March 19, 2015, issued a written statement in favor of the Defendant, namely, “the receipt of the passbook from another person is in conflict with the law and thus cannot be received because the receipt of the passbook from another person is in conflict with the law,” and “3% of the amount of withdrawal shall be paid at the face of a direct withdrawal of the money deposited in the passbook under the name of the Defendant,” and allowed the Defendant to take the personal identification card of the Defendant’s ○ bank, ○○○ Bank, △△△△△, and the Defendant

(3) The person under whose name is not the victim does not require the defendant to make any additional means of access such as a password, security card, and authorized certificate. The defendant obtained a deposit passbook and identification card from the defendant, and taken the part indicating the account number of the deposit passbook and a camera attached to the cellular phone, and immediately returned it to the defendant.

(4) The Defendant was only able to withdraw the money deposited as above from the victims of the crime of Bophishing to the above two deposit passbook accounts.

(5) At around 12:19 on the same day, the Defendant withdrawn KRW 21 million out of KRW 21,50,000,000, which was transferred to the account of ○○ Bank in the name of the Defendant at the ○○ Bank counter of ○○ Bank in Gangnam-gu Seoul ( Address omitted), and deliver it to the person who is not entitled to the name, and around 13:29 on the same day, the Defendant withdrawn KRW 27,90,000 out of KRW 27,90,000,000, which was transferred to the account of △△△△ in the name of the Defendant at the △

C. Examining the above facts in light of the legal principles as seen earlier, the Defendant’s act of allowing a nameless person to photograph two account numbers on the Defendant’s deposit passbook is not a lending of the means of access to conduct electronic financial transactions using electronic information contained in the Magic belt attached to the deposit passbook. Thus, it cannot be deemed as the lending of the means of access stipulated in Article 6(3)2 of the Act.

The court below is justified in holding that in order to recognize the lending of the means of access, it is not appropriate that the recipient should use and benefit from the means of access to the extent of exclusive and exclusive use of and benefit from the means of access after the point of time of lending. However, the court below's decision that affirmed the judgment of the court of first instance that found the Defendant not guilty of this part of the facts charged on the ground that the Defendant's act of allowing the unauthorized holder to take the photograph of the deposit passbook under the name of the Defendant does not constitute a "lending of access media" under Article 6 (3) 2 of the Act, is justified. Therefore, the court below's decision is not justified in the misapprehension of the legal principles as to "lending of access media" under Article 6

2. misunderstanding of facts concerning fraudulent assistance by using computers, etc.;

The lower court upheld the first instance judgment that acquitted the Defendant of the facts charged regarding the aiding and abetting the use of computers, etc. In light of the records, the lower court’s determination is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on the intention of aiding and abetting the use of computers, etc., beyond the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

3. Conclusion

The prosecutor's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)