예금통장(대포통장)은 전자금융거래법상의 접근매체인가? - 대법원 2010.05.27. 선고, 2010도2940 판결 -

The Electronic Financial Transaction Act('EFTA') of Korea was promulgated in April 2006. Under Article 2 (10) of the EFTA, the term “means of access” means any means or information falling under any of the following items which is used to issue a transaction request in electronic financial transactions or to secure the authenticity and accuracy of the users and the details of such transaction: (a) an electronic card or other electronic information equivalent thereto, (b) electronic signature creating key referred to in subparagraph 4 of Article 2 of the Digital Signature Act and a certificate provided for in subparagraph 7 of the said Article, (c) a user number registered with a financial institution or an electronic financial business operator, (d) biological information of users, and (e) any password required to use any means or information referred to in item (a) or (b). Based on the term “means of access” of the EFTA, no one should commit any offence falling under any of the following subparagraphs unless specifically provided for in other Acts with respect to the use and management of means of access(Article 6 (3)): (1) to acquire or transfer means of access, (2) to borrow or lend means of access with compensation, (3) to provide for the means of access subject to a right of pledge, (4) to assist such acts prescribed in subparagraphs (1) through (3); Provided, that the same shall not apply to cases where electronic prepayment means under Article 18 or electronic currencies shall be transferred or offered as security. In turn, any person who falls under any of the following subparagraphs is punished by imprisonment of not more than three years or by a fine not exceeding twenty million won(Article 49 (4)): (1) any person who has acquired or transferred means of access in violation of Article 6 (3) 1, (2) any person who has borrowed or lent means of access in violation of Article 6 (3) 2, (3) any pledger or pledgee who has violated Article 6 (3) 3, or (4) any person who has assisted any offense in violation of Article 6 (3) 4. In case of a bankbook, however, whether it is one of means of access or not under the EFTA is not currently clear because of unclear provisions of the EFTA. Since telephone financial fraud has frequently occurred in Korea and other's bankbooks have been used in connection with such financial fraud, it is important to find out how a bankbook falls under means of access of the EFTA. Under the circumstances, the recent decision by the Supreme Court of Korea can show how we can judge that a bankbook is one of means of access under the EFTA and hence that the sale of a bankbook deserves punishment for its illegal offenses provided by the EFTA. The Supreme Court of Korea('Supreme Court Decision 2010Do2940 decided May 27, 2010') says that the punishment under the EFTA against any sales of a bankbook should be done on the assumption of the electronic financial transactions and the electronic trading instructions in pertinent bankbook. Therefore, the judgment of a bankbook only by appearance cannot be justified against the punishment of sale of a bankbook. The prerequisite for the possibility of an electronic financial transaction should meet in order a bankbook to be one of means of access under the EFTA. Even though the Supreme Court's decision does not cover all possible matters and issues related to a bankbook's means of access, it is noted that at least it could be a minimum guideline for the possible punishment against the related illegal offenses.