[1] Whether res judicata effect of a final and conclusive judgment on a person’s act of holding another person’s credit card information without permission may be imposed where the person continues to hold the information after a final and conclusive judgment was rendered guilty (negative)

[2] The time when the crime of fraud by use, such as computer, etc., under Article 347-2 of the Criminal Code was committed

[3] The case holding that if a mobile product right was purchased and paid by entering another person's credit card information without the authority to do so, but the credit card company failed to obtain economic benefits due to the revocation of the transaction approval by the card company, such act constitutes an attempted crime of fraud by use, such as computer, etc., under

[1] Article 70(1)6 of the Specialized Credit Financial Business Act provides that “a person who possesses other person’s credit card information detected by deception or other improper means” shall be punished. Since the crime of violation of the above provision is a continuous crime, even if there is a punishment for holding another person’s credit card information before and after the previous judgment, the act of continuously holding the same credit card information after the previous judgment is subject to punishment again. This is a separate crime, and even if it is identical to the credit card information of the previous final judgment, the final judgment does not affect res judicata.

[2] The crime of fraud by use of computers, etc. under Article 347-2 of the Criminal Act is established when a person acquires pecuniary benefits by inputting false information or improper orders into a computer or any other information processing device, or by inputting or altering information without authority.

[3] The case holding that if a mobile product right was purchased and paid by entering another person's credit card information without the authority to do so, but the credit card company failed to obtain property benefits due to the revocation of the transaction approval, it constitutes an attempted crime of fraud by use, such as computer, etc., under Article 347-2

[1] Article 70 (1) 6 of the Specialized Credit Finance Business Act / [2] Article 347-2 of the Criminal Act / [3] Article 347-2 of the Criminal Act

[1] Supreme Court Decision 2008Do2099 Decided May 29, 2008

Defendant

Defendant

Salycera

Attorney Kang Han-chul

Jeonju District Court Decision 2007Ra1341 Decided November 14, 2007

Jeonju District Court Decision 2007No1343 Decided February 15, 2008

Supreme Court Decision 2008Do2099 Decided May 29, 2008

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

The 79 days of detention before the pronouncement of the judgment below shall be included in the above sentence.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) The argument that the part of the violation of the Specialized Credit Financial Business Act as stated in the list of crimes (1) 18 to 65 in the holding of the court below is contrary to res judicata

Although the above part of the crime was already convicted, the court below erred by misapprehending the legal principles that the court below found the defendant guilty without acquittal judgment on this part of the facts charged, which affected the conclusion of the judgment, and even if the part of the crime does not conflict with the res judicata, the court below should render a verdict of innocence to the defendant by falling under the error of law stipulated in Article 16 of the Criminal Act, even if the part of the crime in

2) misunderstanding of facts or misunderstanding of legal principles as to fraudulent use, such as computers, etc. mentioned in the crime sight table (2) 293 through 300 in the holding of the court below

The part of the crime list (2) 293 through 300 against the victim non-indicted 1 in the crime list (2) is revoked by credit card transaction approval and the defendant did not obtain economic benefits, but the court below erred by misunderstanding the facts charged or by misunderstanding the legal principles, which affected the conclusion of the judgment.

3) misunderstanding of the legal principles as to fraudulent use, such as computers, etc. mentioned in the crime sight table (2) 251 to 292 in the holding of the court below

The part of the crime sight table (2) 251 to 292 in the judgment of the court below is identical to that of (2) 59 to 75, 226 through 247, 248 through 250 in the crime sight table (2), and is charged for duplicately. Thus, the court below erred by misapprehending the facts charged or by misapprehending the legal principles, which affected the conclusion of the judgment.

4) The assertion that the confiscation of seized evidence Nos. 1 through 14 is unlawful

As the above seized articles are possessed and used by the defendant in his daily life, they are not subject to confiscation, the court below erred by misunderstanding the fact that the above seized articles were confiscated, or by misunderstanding the legal principles, which affected the conclusion of the judgment.

B. Sentencing

In light of the various sentencing conditions of this case, including the fact that the defendant reflects his fault in depth, the sentence imposed by the court below against the defendant is too unreasonable.

2. Determination:

(a) Ex officio determination (Changes in indictment);

Before determining on the grounds for appeal by the defendant, the health unit and the prosecutor applied for changes in the indictment to delete 251 to 292 out of the list of crimes in the indictment of this case among the charges of this case. Since the judgment of the court below was changed by permitting it, the judgment of the court below is no longer possible (the defendant's ground of appeal Nos. 1-A. 3 was modified as stated in the defendant's argument, so no further determination is required).

However, the grounds for appeal by the defendant who asserts misunderstanding of facts or misunderstanding of legal principles as to the changed facts charged are still subject to the judgment of this court.

B. As to the assertion of mistake of facts or misapprehension of legal principles

1) The argument that the part of the violation of the Specialized Credit Financial Business Act, as stated in the list of crimes (1) 18 to 65 in the holding of the court below, is contrary to res judicata or constitutes legal mistake

A) Determination as to the assertion that it goes against the res judicata

According to evidence duly admitted and examined by the court below, even if the defendant was indicted for a violation of a specialized credit financial business prior to prosecution, etc., and the defendant appealed one year and six months from the Seoul Central District Court, which was the appellate court, and the judgment became final and conclusive August 24, 2006. The defendant's act of transmitting another person's credit card information (hereinafter "the credit card information of this case") as stated in [Attachment 1] 18 through 65 to (e.g., e-mail) was sent to ( Address 1 omitted) e-mail account and stored another person's e-mail information of this case from October 31, 2004 to March 24, 2005, and the defendant continued to possess the above e-mail information of this case under the former Specialized Credit Financial Business Act's name and thus, it cannot be seen that the defendant's act of keeping the above e-mail information of this case to the e-mail address of this case without consent of non-indicted 22's e-mail.

B) Determination on the assertion that the act constitutes a mistake in law

Article 16 of the Criminal Act provides that "the act of misunderstanding that one's own act does not constitute a crime under the Acts and subordinate statutes shall not be punishable only when there is a justifiable reason for such misunderstanding." It does not mean a simple legal site, but it means that a person is not punishable if there is a justifiable reason when he knows that it is generally a crime but, in his own special circumstances, it is not a crime permitted by the Acts and subordinate statutes, it is not a crime. Whether there is a justifiable reason should be determined depending on whether the act was not aware of the illegality of his own act as a result of his failure to meet his intellectual ability even though it was possible to recognize the possibility that one's own act might not be a crime under the Acts and subordinate statutes if the act was done with his own intellectual ability, and there was an opportunity to judge whether the act was illegal (see Supreme Court Decision 2005Do3717, Mar. 24, 2006).

However, according to the evidence duly adopted and examined by the court below, the above argument by the defendant is merely merely a site of law, and in particular, it is not a case where the defendant actively knew that it is not a crime permitted by the law, and it cannot be deemed an act due to a mistake of law. Thus, this part of the defendant's assertion is without merit.

2) misunderstanding of facts or misunderstanding of legal principles as to fraudulent use, such as computers, etc. mentioned in the crime sight table (2) 293 through 300 in the holding of the court below

A) Summary of this part of the facts charged and the judgment of the court below

The summary of this part of the facts charged is as follows: "the defendant purchased the mobile product right of 100,000 won via the Internet (State) Internet at the scamburf site located in the US, Seoul and around July 10, 2007, using the Internet around the 100,000 won, and made the victim non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 293 through 300's information processing device such as the above 8 times in total, without authority, and settled the purchase price," and the court below found the defendant guilty.

B) Determination of the immediate deliberation

The crime of fraud by use of computers, etc., prescribed in Article 347-2 of the Criminal Act, shall be established when any pecuniary benefit has been acquired by inputting a false information or improper order into a computer or any other information processing device, or by inputting or altering information without authority.

However, according to the crime sight table (the evidence record 857, 857 pages) attached to the fourth police interrogation protocol against the defendant, the part as stated in (2) 293 through 300 of the crime sight table against the victim non-indicted 1 was paid in a lump sum using credit card information on July 10, 2007, but all transaction was canceled from Non-indicted 1, but the defendant was paid in a lump sum on August 25 through August 28, 2007. Thus, the defendant attempted to acquire economic benefits by entering illegal orders into the data processing device, such as computer, and did not bring about an attempted crime. Therefore, this part of the facts charged is found only as guilty, and it constitutes a case where there is no proof of a crime against fraud by using computer, etc., but the court below found the defendant guilty. The judgment below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment, and the defendant's assertion that points out this error has merit.

3) The assertion that the confiscation of seized evidence Nos. 1 through 14 is unlawful

Article 48 (1) of the Criminal Code provides that articles provided or intended to be provided to a criminal act, articles produced or acquired by a criminal act, and articles acquired in return therefor may be confiscated.

However, according to the records of seizure (Evidence No. 593, 594) as to the above seized articles, the police officer may seize credit cards, cell phones, wallets, etc. which the defendant was in possession of at least 19:40 on August 27, 2007 when the defendant arrested the defendant, but there is no evidence to prove that the above seized articles were either the articles provided or intended to be provided by the defendant in the criminal act of this case or the articles produced or acquired by it. Thus, the above seized articles cannot be confiscated. However, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment. The defendant's assertion pointing this out is with merit.

3. Conclusion

Therefore, the defendant's appeal is well-grounded, and the judgment of the court below is without merit, and the decision of the court below is reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act without further proceeding to decide on the defendant's allegation of unfair sentencing, and it is again decided as follows.

On November 30, 2005, the Defendant appealed from the Seoul Central District Court (2005Da2038, 2538, 4653) to a crime of forging public documents, etc. The Defendant was sentenced to imprisonment on November 30, 2005 and appealed on April 27, 2006 from the Seoul Central District Court (2005No3918) to a non-guilty on April 27, 2006, and filed another appeal on August 24, 2006 by the Supreme Court (2006Do3047) that became final and conclusive by dismissal of the Defendant’s final appeal and completed the execution of the said sentence in the Seoul Detention District Court on October 8, 2006;

After release, the Defendant had received information on other person’s credit card through the Internet, such as the above Act on the Acceptance of Crimes, and had been able to acquire pecuniary benefits by purchasing cyber money or goods using the Internet.

1. Violation of the Specialized Credit Financial Business Act;

Around July 1, 2007, at the Simna, where it is impossible to identify the trade name in Seoul, the term "( Address 3 omitted) .com" means a person who, from June 26, 2007 to July 11, 2007, obtained the credit card information, including the name, resident registration number, credit card number, credit card number, effective period, password, secret number, used limit, and the credit card information, including the CVC number, opened and used in the name of Non-Indicted 4, and obtained and used by illegal means, from June 26, 2007 to July 11, 207, the person who acquired the above information from Non-Indicted 3's name, credit card number, credit card number, personal identification, and credit card information, including the CVC number, in the name of Non-Indicted 4, from June 26, 2007 to 207 to 20 July 27, 2007, who was aware of the above information from the above account's name.

2. Fraud by using computers, etc.;

Around July 4, 2007, when purchasing an international telephone charging card from the Internet (NYPIN site) to 41,329 won via the Internet (NY)-based website, the credit card (credit card No. 2 omitted) obtained from the above site as described in paragraph (1) was entered in the telephone card purchase price settlement page and made the data processing process by allowing the victim non-indicted 5 to obtain the information without authority and make the payment of the information equivalent to the amount of property profits, as described in the attached list No. 1 to 250 of the crime list No. 207, Jul. 4, 2007; from August 17, 2007 to purchase the information by entering the credit card owned by the data processing system, such as computer, into the above information processing system without authority, thereby obtaining property profits of 12,737,715 won, and property profits of 12,737,15 won.

3. Attempted fraud by using computers, etc.;

Around July 10, 2007, the Defendant purchased a mobile product right using the Internet Kthur site at a total of eight times, as shown in [Attachment Table (2) 293 through 300] at the scamb in Seoul and in the US located in a store located below Seoul around July 10, 2007, and tried to enter the information on the victim non-indicted 1 (credit card No. 1 omitted) in the settlement page of the purchase price of mobile product certificates on the above site and to make the payment by making the data processed without authority. However, the Defendant attempted to obtain economic benefits by inputting an illegal order into the information processing device, such as a computer, and failed to bring about an attempted attempt.

In addition to the deletion of "Investigation Report (In relation to the analysis of the place of access to IP, and evidence records 918 pages)" in the summary of the evidence of the judgment below, it is identical as stated in the relevant column, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act

1. Relevant Article of the Act and the choice of punishment for the crime;

Article 70 (1) 6 of the former Specialized Credit Finance Business Act (amended by Act No. 8525 of July 19, 2007), Article 347-2 (Fraud by Use of Computer, etc.), Articles 352 and 347-2 (General Provisions of the former Specialized Credit Finance Business Act (amended by Act No. 8525 of July 19, 2007) of the Criminal Act (amended by Act No. 8525 of July 19, 2007)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, the proviso to Article 50, and the proviso to Article 42 of the Criminal Act (the aggravated punishment provided for the crime of fraud by use, such as computer, etc. against the maximum illness of a victim with the largest punishment)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Exemption from bearing the costs of lawsuit;

The proviso of Article 186 (1) of the Criminal Procedure Act

On November 30, 2005, the Defendant was sentenced to imprisonment of one year and six months for a violation of the Specialized Credit Financial Business Act due to a crime similar to the instant crime, etc. on November 30, 2005, and the execution of the said sentence was completed on October 8, 2006, and then committed the instant crime only one year and one year, but also constitutes a repeated crime. The instant crime was committed by the Defendant, holding another person’s credit card information discovered by illegal means, and acquiring pecuniary profits by purchasing goods and paying the price on the Internet website with another’s credit card information obtained as above. It is recognized that many victims may occur due to the said crime, and that such crime is not less complicated than a social strike, such as disturbing the economic order of the credit society.

However, in the trial of the party, a sentence like the order shall be sentenced in consideration of the fact that a part of the facts charged in the judgment of the court below is found not guilty or is excluded from the changes in indictment, and other various sentencing conditions as shown in the records, such as the age, character, environment

Of the facts charged in this case, the summary of the fraud by using computers, etc. mentioned in (2) 293 through 300 as stated in the above 2-2-2-1 (a) is the same as that of the above 2-2-2-2 (b). As seen in the above 2-2-2 (b), the facts charged in this part of the facts charged constitute a case where there is no proof of the facts charged and thus should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, in a case where it is found guilty of the attempted use of computers, etc. in relation to the above facts charged,

[Attachment 1, 2] Crime List: Omitted

Judges Cho Yong-sung (Presiding Judge)