Whether it is permissible to punish an act of lending a means of access with the promise of compensation as a crime of violating the same Act due to the “loan of a means of access in return for compensation” under Articles 49(4)2 and 6(3)2 of the former Electronic Financial Transactions Act (negative)

Article 6(3)2 of the former Electronic Financial Transactions Act (amended by Act No. 13069, Jan. 20, 2015; hereinafter “former Electronic Financial Transactions Act”) prohibits “the act of borrowing or lending the means of access with compensation or with compensation.” Article 49(4)2 of the former Electronic Financial Transactions Act provides that “a person who borrows or lends the means of access in violation of Article 6(3)2” (amended by Act No. 13069, Jan. 20, 2015; hereinafter “amended Electronic Financial Transactions Act”) prohibits “the act of lending or lending the means of access, or storing, delivering, or distributing the means of access while receiving, demanding or promising compensation.” Article 6(3)2 of the former Electronic Financial Transactions Act prohibits “a person who, in violation of Article 6(3)2 and Article 49(4)2, has received, distributed, or loaned the means of access, or punished a person who has received, distributed, or lent the means of access.”

In light of the contents and purport of each provision of the former Electronic Financial Transactions Act and the former Electronic Financial Transactions Act, even if there is a need to punish the act of receiving a promise of compensation and lending the means of access, punishing such act as a crime of violating the former Electronic Financial Transactions Act by using the term “lending the means of access in return for payment” under Articles 49(4)2 and 6(3)2 of the former Electronic Financial Transactions Act shall not be permissible as a expanded interpretation of penal provisions or an analogical interpretation against the principle of no punishment without

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 6(3)2 and 49(4)2 of the former Electronic Financial Transactions Act (Amended by Act No. 13069, Jan. 20, 2015); Articles 6(3)2 and 49(4)2 of the Electronic Financial Transactions Act; Articles 6(3)2 and 49(4)2 of the Electronic Financial Transactions Act

Defendant

Prosecutor

Changwon District Court Decision 2014No1229 decided December 18, 2014

The appeal is dismissed.

The grounds of appeal are examined.

1. The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect an individual’s freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, the interpretation of penal provisions shall be strict, and an excessively expanded interpretation or analogical interpretation of the meaning of the express penal provisions to the disadvantage of the defendant is not permitted as it is against the principle of no punishment without the law (see, e.g., Supreme Court Decision 2012Do4230, Nov. 28

Article 6(3)2 of the former Electronic Financial Transactions Act (amended by Act No. 13069, Jan. 20, 2015; hereinafter “former Electronic Financial Transactions Act”) prohibits “the act of borrowing or lending the means of access with compensation or with compensation.” Article 49(4)2 of the former Electronic Financial Transactions Act provides that “a person who borrows or lends the means of access in violation of Article 6(3)2” (amended by Act No. 13069, Jan. 20, 2015; hereinafter “amended Electronic Financial Transactions Act”) prohibits “the act of lending or lending the means of access, or storing, delivering, or distributing the means of access while receiving, demanding or promising compensation.” Article 6(3)2 of the former Electronic Financial Transactions Act prohibits “a person who, in violation of Article 6(3)2 and Article 49(4)2, has received, distributed, or loaned the means of access, or punished a person who has received, distributed, or lent the means of access.”

In light of the contents and purport of each provision of the former Electronic Financial Transactions Act and the former Electronic Financial Transactions Act, even if there is a need to punish the act of receiving a promise of compensation and lending the means of access, punishing such act as a crime of violating the former Electronic Financial Transactions Act by using the term “lending the means of access in return for payment” under Articles 49(4)2 and 6(3)2 of the former Electronic Financial Transactions Act shall not be permissible as a expanded interpretation of penal provisions or an analogical interpretation against the principle of no punishment without

2. The summary of the facts charged in this case changed at the court below is that "the defendant accepted the proposal that he would offer KRW 2 million per month if he rents a passbook from the person who was not the person who was named on November 1, 2013, and then, delivered one passbook of the post office account in the name of the defendant and one cash card (including password) to Kwikset service article, and lent the means of access for payment." In light of the above legal principles, the court below was just to have acquitted the defendant on the same purport, and there was no error of misapprehending the legal principles on the interpretation of "the act of lending the means of access for payment" under Article 6 (3) 2 of the former Electronic Financial Transactions Act.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)