형법상 전자기록 위작의 해석에 관하여-대법원 2020. 8. 27. 선고 2019도11294 판결을 계기로- = The Meaning of ‘Falsification’ of Electromagnetic Records

다국어 초록 (Multilingual Abstract)

In recent years, there have been a number of crimes that attract investors by creating false cryptocurrency exchanges or by falsely manipulating transaction records on cryptocurrency trading sites in a situation where investment in cryptocurrency is hot. In relation to this record manipulation, the Supreme Court recently issued a decision on the concept of 'falsification' of electronic records, and here again, the opinions of judges were divided.
In this study, first of all, the purpose and logic of the majority opinion and the opposition opinion of the Supreme Court's sentence of 2019Do11294 are analyzed and reviewed. The main issue of the case is whether the act of generating electronic records contrary to the will of the system installer or operator by abusing its authority constitutes a "falsification" of private electromagnetic records prescribed in Article 232-2 of the Criminal Act.
In response, the majority opinion said, "In relation to the subject who installs and operates the system, a person who is not authorized to generate electronic records or inputs unit information necessary for the generation of electronic records, and a person who is authorized to enter false information in the scope of their duties is included in Article 227-2 of the Criminal Act. The above legal principles also apply to "falsification" defined as the aspect of the act in the crime of “falsification or alteration of private electromagnetic records” under Article 232-2 of the Criminal Act. The Supreme Court's legal principles on such forgery are valid and can be applied in this case." In response, the dissenting opinion is that "the Defendants' actions do not constitute a 'falsification' prescribed in Article 232-2 of the Criminal Act." Nevertheless, the lower court's judgment that the Defendants' actions constituted a "falsification" erred by misunderstanding the legal principles on the meaning of "falsification" as prescribed in Article 232-2 of the Criminal Act. Therefore, the judgment of the lower court regarding this part should be reversed and the case should be remanded to the lower court to hear and judge again." It has the opposite view of judging the Defendant's act as innocent by the majority opinion.
The crime of falsification of electronic records is an area that requires an independent interpretation different from the crime of documents regarding the requirements for establishment of electronic records, falsification, and other personality of electronic records. In this regard, the interpretation of previous studies on the crime of falsification of electronic records is reviewed and analyzed. In addition, the concept of reasonable 'falsification' is derived by reflecting the legislator's purpose of the concept of 'falsification' through the 1995 criminal law revision data. Based on this, the logical basis of each of the Supreme Court's majority and dissenting opinions is analyzed and critically reviewed to establish a valid concept of 'fake', and the correct interpretation of the case and the direction of application to similar cases in the future is presented.