디지털정보 부정사용의 형법적 규제

Many types of digital properties generated online and through computers in late 20th century have been used in the commission of crimes, but confusion has arisen in existing criminal-law systems as to how to regulate and prevent such thefts. This Article provides an overview of the traditional limitation of the crime of larceny to moveable property and some of the difficult issues of interpretation of the modern theft offence that are related to the inclusion of intangible property within its definition in both Korean and foreign law. It discusses whether the crimes of larceny(and/or fraud) can be proven if important digital information is stolen, whether intangible digital information can be considered property for the purpose of the crime of larceny, and whether the asportation and specific-intent elements of larceny can be proven with the theft of digital information. Expanding the current definition of property to include digital property containing important information for the purpose of theft prosecutions can, at least in many jurisdictions, only be done by analogical judicial interpretation extending statutory definitions of theft to contexts that their drafters did not imagine. Rather than examining whether digital property is worth protecting, it would make better sense to regulate the use of digital property because it is difficult to regard the unauthorized usage of digital property as an object of theft. This Article proposes, therefore, the creation of a statutory unlawful-use offense to regulate the illegal use of digital property containing important information, analogous to the common statutory crime of unlawful use of a vehicle.