전자기록위작죄에서 ʻ권한남용적 허위작성ʼ의 판단기준을 위한 소고 - 대법원 2020. 8. 27. 선고 2019도11294 전원합의체 판결 이후의 논의를 위하여 -

Abstract

The Supreme Court ruled that the crime of falsification of electronic records, like the crime of falsification of public electronic records, includes not only the act of entering information by an unauthorized person, but also the act of creating an electronic record against the will of the system installer and operator by abusing the authority to enter false information even if the authority to enter individual unit information is granted by the system installer and operator (hereinafter referred to as 'abuse of authority falsification'). Leaving aside the criticism of the Target Judgment, the Target Judgment has led to the need for further discussion on the criteria for distinguishing between abusive falsification that is in the realm of guilt and falsification that is not. In light of the evidentiary and assurance functions of electronic records, it may be possible to determine whether the act of entering false information into an electronic record is an abuse of authority based on whether it violates the assurance and evidentiary functions of the information processing system. It is in the same vein that the target judgment ruled that "the offense of falsification of electronic records is not established if the electronic record does not fulfill its intended evidentiary function by being used in the system". In other words, a person who is "authorized by the entity installing and operating the system to enter information that appears in the name of the system" can be evaluated as abusive falsification only if the person "abuses the authority," and the authority abused here does not simply mean the authority to access the record and enter information, but the information must be "information that the entity installing and operating the system displays as a person, i.e., a subject of expression," and the information must be able to perform the evidentiary function intended by the entity installing and operating the system. Therefore, even if a user is authorized to enter information by being granted a user ID and password by the system installation and operation entity, it cannot be considered as an 'abuse of authority' if the information entered cannot be evaluated as the intention expressed by the system installation and operation entity, or if the information is unrelated to the attestation facts planned by the system. Although electronic records certainly have their own specificities, they are basically understood to protect the "public trust in documents or records" as the legal interest of the document crime, so they can be evaluated as performing a guarantee and attestation function. The forms of electronic records are very diverse, and it cannot be excluded that there will be forms of electronic records that we have not yet imagined in the future. From the perspective of the "function" of the medium for expressing various forms of communication, which breaks away from the framework of the existing document concept, criteria such as the one proposed by the author can be fully considered in determining "abusive falsification". Ultimately, I think that legislation should introduce a new concept of documents that encompasses electronic records, electronic documents, and paper documents, and regulate them uniformly.