The meaning of "use for a crime" under Article 6 (3) 3 of the Electronic Financial Transactions Act means "use for a crime" under the meaning of "use for a crime or being used for a crime."

Article 6(3)3 of the Electronic Financial Transactions Act

Defendant

Prosecutor

Attorney Park J-jin

Suwon District Court Decision 2020No764 decided June 11, 2020

The non-guilty part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Gu Government District Court.

The grounds of appeal are examined.

1. Of the facts charged in the instant case, the summary of the violation of the Electronic Financial Transactions Act is that the Defendant and Nonindicted Party 1 conspired to use the “(site name omitted)” as a publicity site for commercial sex acts in order to disguise the fact regarding the acquisition of criminal proceeds, which are punished, and then, Nonindicted Party 2 promised to pay KRW 2 million to Nonindicted Party 2 at the end of October 2019, and received the means of access for the purpose of using them for the purpose of committing a crime by receiving a copy of the check card linked to Nonindicted Party 2’s national bank account.

2. Based on its stated reasoning, the lower court reversed the first instance judgment convicting the Defendant of this part of the facts charged and acquitted, on the grounds that it cannot be deemed that the means of access leased by the Defendant constitutes a direct or indirect use of the crime committed in violation of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. (hereinafter “the Sexual Traffic Punishment Act”).

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. In full view of the legislative intent, literal meaning, etc. of Article 6(3)3 of the Electronic Financial Transactions Act, the term “use of means of access to a crime” under the said provision includes not only cases where the means of access is used directly for the commission of a crime, but also cases where it actually contributes to the commission of a crime, such as where the means of access is ordinarily accompanied by or closely related to the crime.

B. According to the reasoning of the lower judgment and the evidence duly admitted, the Defendant and Nonindicted Party 1 received advertising expenses from operators of commercial sex acts establishments from around October 29, 2019, when operating a commercial sex acts promotion site, and the Defendant and Nonindicted Party 1 intended to receive and manage advertising expenses in the name of another person in order to conceal the advertising expenses. Accordingly, around October 2019, he borrowed one check card connected to the national bank account in the name of Nonindicted Party 2. In light of the timing and method of operating the commercial sex acts promotion site, the Defendant and Nonindicted Party 1 intended to deposit the advertising expenses in the commercial sex acts promotion site from the time when he/she was leased the said physical card to the account connected to the commercial sex acts promotion site.

Examining these facts in light of the aforementioned legal principles, it is reasonable to view that the Defendant was leased the means of access to “for the purpose of using a crime” as provided by Article 6(3)3 of the Electronic Financial Transactions Act, on the ground that the Defendant’s use of the means of access ordinarily accompanied by or closely related to the crime of causing advertisements to be placed by the operators of commercial sex acts in order to manage advertising expenses received from the operators of commercial sex acts while operating the commercial sex acts, and the said means of access constitutes a case where the use is ordinarily accompanied by or closely related to the crime of causing advertisements to be placed on commercial sex acts.

C. Nevertheless, the lower court erred by misapprehending the legal doctrine on “the purpose of using crime” under Article 6(3)3 of the Electronic Financial Transactions Act, thereby adversely affecting the conclusion of the judgment. The prosecutor’s ground of appeal assigning this error is with merit.

4. Therefore, the non-guilty part of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)