사전자기록위작죄에서 ‘위작’의 개념 (대상판결 : 대법원 2020. 8. 27. 선고 2019도11294 전원합의체 판결)

Abstract

For the forgery of private electronic records stipulated in Article 232-2 of the Korean Criminal Code, there is a controversy over what kind of act “forgery” means. In the Korean Criminal Law, “forgery” a paper document is when a person without authority to write the document writes it without permission. By the way, does the “forgery” of private electronic records include the act of writing false records by a person who has the authority to create electronic records? The subject of this case is that the CEO of a company operating a cryptocurrency exchange directly inputs false transaction information into the transaction system operated by him. In this case, the most important issue is how to interpret the meaning of “forgery” prescribed in Article 232-2 of the Korean Criminal Code. The majority opinion of the supreme court judges that there is a need for punishment, considering the social change caused by the development of today's technology, for the act of abusing authority to enter false information and creating unwanted electronic records by the operating entity of the system'. And it is judged that this interpretation is consistent with the interpretation of legal terms and the legislator's will. However, this attitude of the majority opinion causes serious confusion in distinguishing between the act of creating private electronic records without permission and the act of writing false content by a person with authority. In the case of private electronic records, a manager's abuse of authority and that it is against the manager's will is a distinct distinction. Therefore, the opinion of the majority explaining this in the same context is ambiguous in its legal meaning. The concept of public credit that the crime of forgery of documents is intended to protect is embodied through the provisions of the criminal law. The legal interest of public credit can be the basis for acknowledging the need for punishment for certain actions. However, this is the starting point of interpretation and cannot be said to be an absolute criterion that can go beyond the principle of criminal justice or separation of powers. In the current criminal law regulations, it is a violation of the principle of "nulla poena[nullum crimen] sine lege" to evaluate falsely writing records by a person who has the authority to write them as counterfeit.