사회변화에 따른 형법상 문서개념 해석의 한계

Abstract

Recently, the Supreme Court of Korea sentenced not guilty upon the use of the sending image-file, denying document-conception. Because it is stipulated in the Criminal Act of Korea(§ 234) that any person who utters any 'document', drawing or special media records, such as electromagnetic records, etc., made by the crime as prescribed in Articles 231 through 233, shall be punished by the same penalty as prescribed for the respective crime. By the way, the reason is why the use of the sending image-file don't come under 'document'. So, I think that the argument of the decision is appropriate in two points of view. First, It is not rational to admit unlawful uttering of document, because the use of the sending image-file don't include to unlawful 'uttering' of document. Secondly, the vacuum of the legislation can't be replaced with interpretation of the law. But, according to TiTle 18, chapter 25-474(b) in America, it is stipulated that the term "analog, digital, or electronic image" includes any analog, digital, or electronic method used for the making, execution, acquisition, scanning, capturing, recording, retrieval, transmission, os reproduction of any obligation or security, unless such use is authorized by the Secretary of the Treasury. Anyway, I think that we should study a document-conception whether to include the use of the sending image-file in this case.