(영문) 전주지방법원 2008.9.4.선고 2008노690 판결

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 part of the above 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 above 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 though it did

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The part as stated in (2) 293 to 300 of the list of crimes against the actual gold of the victim was revoked by credit card transaction approval and the defendant did not obtain economic benefits, but the court below erred by misunderstanding the facts charged or by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. Unreasonable 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 the amendment of the indictment to delete 251 through 292 out of the list of offenses among the charges in this case, and the subject of the judgment by allowing it was changed by the trial, the judgment of the court below becomes no longer possible (the defendant's ground of appeal No. 1-A). However, since the defendant's ground of appeal alleging mistake of facts or misapprehension of legal principles is still subject to the judgment of the court of this case, the changed indictment is examined on the premise of the changed charges.

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 the evidence duly adopted and examined by the court below, the defendant was indicted for violating the Specialized Credit Financial Business Act prior to the prosecution, and the defendant was dismissed on August 24, 2006, which was sentenced to imprisonment of one year and six months at the Seoul Central District Court which was the appellate court, and the judgment became final and conclusive on August 24, 2006. The defendant's act of transmitting another person's credit card information (hereinafter "the credit card information of this case") stated in the annexed crime list (1) 18 through 65 to the e-mail account and stored another person's e-mail information from October 31, 2004 to March 24, 2005, which is subject to punishment of the above e-mail again, and the defendant's act of keeping another person's e-mail information of this case with 'the former credit card holder's e-mail without the consent of her own e-mail will be deemed to be an unlawful act of keeping another person's e-mail information of this case.

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 Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for misunderstanding" rather than a simple legal site, but it is generally a case that constitutes a crime, but if one's own special circumstance is aware that it does not constitute a crime under Acts and subordinate statutes, and there is a justifiable reason for misunderstanding such misunderstanding." The purport is that it shall not be punishable. Whether there is a justifiable reason should be determined depending on whether the act was not aware of the illegality of one's own act as a result of failure to meet his/her intellectual ability even though there was a chance to recognize the illegality of his/her own act if the act was done with his/her own intellectual ability and efforts to avoid it were made (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 it is not a case where the defendant actively knew that it is not a crime that is permitted by the law, and therefore it cannot be deemed an act due to a mistake of law. Thus, this part of the defendant's assertion is groundless.

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 100,000 won of the mobile product purchase price using the Internet (State) case franchising website at the scamba in the city of the USA around July 10, 2007, using the mobile product purchase price of the above site at KRW 100,000,00 of the mobile product purchase price in the above site without authority, and made the data processing process by entering the information ".............. the information obtained as stated in paragraph (1) of the facts charged in this case and making the data processing process process to obtain an equivalent amount of financial benefits, and as stated in (2) 293 through 300 of the attached list of crimes (2) of the annexed list 293 through 300, and made the data processing process without authority to settle 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 benefits have been acquired by making any data processed after inputting a false information or improper order into a computer or any other information processing device, or inputting or altering data 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's yellow gold was paid in a lump sum using a credit card information on July 10, 2007, but all transaction was revoked by the defendant on August 25 through August 28, 2007. Thus, the defendant tried to acquire profits by entering an unlawful order into a computer or any other information processing device, and did not intend to acquire profits. Thus, this part of the facts charged is found only to be guilty, and it constitutes a case where there is no proof of a crime regarding the attempted use of computer or any other fraudulent act. However, the court 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 for such articles may be confiscated.

However, according to the records of seizure of the above seized articles (Evidence No. 593, 594 pages), the police officer may seize credit cards, cell phoness, locks, etc. which the defendant was in possession of at least 19:40 on August 27, 2007 when the defendant was arrested and detained. However, there is no evidence to acknowledge that the above seized articles are articles provided or intended to be provided by the defendant for the criminal act of this case or articles produced or acquired thereby. Thus, the above seized articles cannot be confiscated. However, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment. The defendant's assertion pointing this out is with merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, 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. It is again decided as follows.

Criminal facts

On November 30, 2005, the Defendant appealed from the Seoul Central District Court (2005Da2038, 2538, and 4653) to a crime of forging public documents. The Defendant appealed from the Seoul Central District Court (2005Da3918), which was sentenced to imprisonment on April 27, 2006, and again appealed from the Seoul Central District Court (2005Do3918) to a non-guilty on April 27, 2006. The Defendant’s final appeal was dismissed on August 24, 2006, and the above judgment became final and conclusive, and the enforcement of the above sentence was completed in Seoul Central Detention District Court on October 8, 2006. The Defendant, after release, obtained information on other person’s credit card and acquired cyber money or goods using other person’s Internet information to acquire economic benefits, and the Defendant was in mind of purchasing cyber money or goods using other person’s Internet information, such as the above Criminal Procedure Act.

1. Violation of the Specialized Credit Financial Business Act;

On July 1, 2007, the term "Dbma.com" in the remote area where it is impossible to identify the name in Seoul, from a person whose name the ID is used to be known, the credit card company's name, resident registration number, credit card number, credit card company, effective period, password, secret number, used limit, credit card information including CVC number, etc., opened and used in the name of the defendant in the name of the bar, and obtained the credit card information by an unlawful means from the person whose name it is unknown from June 26, 2007 to July 11, 2007, and obtained the above credit card information from the credit card company's name from June 2007 to the above 207 account, and obtained the above information from the credit card company's name "Fbama.com" and the above credit card company's name from July 27, 2007 to the above account.

2. Fraud by using computers and other relevant information;

Around July 4, 2007, purchasing an international telephone charging card for 41,329 won via the Internet (NYIN)-based website in a non-commercial area located in Seoul and below, and purchasing the international telephone charging card for 41,329 won, as described in paragraph (1) of the above site’s telephone card purchase price settlement page, the victim gambling who obtained the credit card in the above site without authority and made the information processed by entering the new card information in the name of the household and making the information processed, and then making the payment, as described in attached Table (2) 1 through 250, as shown in attached Table (2) of the List of Crimes (2) through 250, from July 4, 2007 to August 17, 2007, by purchasing the information processed by entering the credit card information retained in a computer and other information processing device without authority as above, thereby acquiring property profits of 12,737,015 won in total.

3. Attempted fraud by using computers, etc.;

Around July 10, 2007, the Defendant purchased a mobile product certificate from the Internet Ktur site at a total of eight times, as shown in [Attachment Table (2) 293 to 300] at the store located in Seoul and below, and attempted to make a settlement by inputting the information without authority as stated in paragraph (1) on the settlement screen for the purchase price of mobile product certificates, and making it processed by inputting the information in the name of the victim yellow gold in the name of the above site, as stated in paragraph (1). However, the Defendant intended to acquire economic benefits by inputting the illegal order into the information processing device, such as a computer, but failed to bring about an attempted attempt to acquire economic benefits by inputting the information processing device such as a computer.

Summary of Evidence

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 shall be quoted in accordance with Article 369 of the

Application of Statutes

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

Article 70(1)6 of the former Specialized Credit Finance Business Act (amended by Act No. 8525 of July 19, 2007), Article 70(1)6 of the former Specialized Credit Finance Business Act (amended by Act No. 8525 of July 19, 2007), Article 347-2 of the Criminal Act (the possession of other person's credit card information, the choice of imprisonment), Articles 352 and 347-2 of each Criminal Act (generally, the possession of computer and other information, the possession

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, Article 50, and the proviso to Article 42 of the Criminal Act (the punishment and punishment shall be aggravated by the punishment prescribed in 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

The reason for sentencing is that the defendant was sentenced to one year and six months for a violation of the Specialized Credit Financial Business Act due to a crime similar to the crime of this case on November 30, 2005, and the execution of the above sentence was completed on October 8, 2006, and only one year after the execution of the above sentence was completed, and the crime of this case constitutes a repeated crime. The crime of this case is recognized as having obtained property profits by purchasing another person's credit card information discovered by the defendant in an unlawful manner, and paying the purchase of goods and payment on the Internet website using another's credit card information obtained as above. It is recognized that many victims may occur due to the above crime, and social strike such as disturbing the economic order of the credit society, and thus, the crime is not easy.

However, in the trial of the original instance, the facts constituting the crime have been reduced as part of the facts constituting the crime is found not guilty or is excluded from the changes in indictment, and the punishment like the order shall be sentenced in consideration of various sentencing conditions indicated in the records, such as age, character, conduct and environment

Of the facts charged in this case, the summary of the crime committed by the use fraud, such as computers listed in (2) 293 through 300 among the facts charged in this case is the same as the above 2-B-2(a). This part of the facts charged in this case, as seen in Article 2-2-2(b)(b) of the Criminal Procedure Act, should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, unless it is proven that the facts charged in this part of the facts charged constitute a case without proof of the facts charged. However, as long as it is found to be guilty of the attempted use of computer or other means