사전자기록 위작의 개념과 허위작성의 법적 평가 - 가상화폐 거래소 운영진의 가상화폐 임의충전 행위에 대한 사전자기록등위작죄 성립 여부 - - 서울고등법원 2019. 7. 23. 선고 2019노396 판결 -

The history of criminal behavior relative to documents has reflected the societal development and the transformations of social phenomena. As the electronic records came to replace the function of written document, legislators created new rules to deal with this change. Nonetheless, there exists controversy for it has failed to clearly define what ‘creation’ of false electronic records means. Ever since, the Supreme Court compensated the existing defect in the definition of the range of such crimes interpreting that allowed to include creation of any false documents against the will of those in charge of operation of the system by deviating from or abusing the legitimate power in the category of creation of false public electronic records. Now, 15 years since the decision, the Supreme Court is expected to render judgment as to the private electronic records. To expand the range of punishment according to the existing criminal law, one must abide by the principle of legality(nulla poena sine lege). In light of the common usage of the term, ‘creation’ of false electronic records, as specified in the statement of legislative intention, and decisions made by the Supreme Court and the Constitutional Court dealing with the concept of ‘creation’ as a common element of both public and private electronic records, the creation of false instrument by a person with authority in private sphere may also viewed as so. Moreover, considering the history of the benefit and protection of the law related to crimes involving written instrument, the need to protect special features of electronic records, and the declining practical utility of differentiating public and private electronic record, it is necessary to protect public trust by punishing the creation of false private electronic records. From the standpoint of criminal justice policy, ultimately, the need to punish creation of false electronic records regardless of it being public or private should be duly recognized. If, however, creation of false electronic records with authority of private document is to be subjected to punishment, it should be specifically so stated by legislative act in accordance with viewpoint of the predictability of the criminal and the principle of legality. At present, an act committed as a form of deviation from and abuse of given authority against the will of those in charge of operation of system only may be punished according to the range of authority in question. From this viewpoint, the current case should be looked upon as creation of false private electronic records outside the range of authority determined by both the users of the virtual currency exchange service and those in charge of operation of the system in question, in view of the Supreme Court decision on public electronic records and the special features and benefit protected by law regarding electronic records. Furthermore, because there exist certain restrictions concerning the range of authority to create records between customers and those in charge of system operation, falsification even by system operators may also constitute creation of false private electronic records outside the authority so restrained.