The Supreme Court has ruled that even if a bank account was opened with the intention of transferring it to others, knowing that it could be used for voice phishing crimes, the crime of obstruction of business does not apply. The ruling states that if one merely conceals the intended use and submits the necessary documents for review without actively deceiving, such as submitting forged documents at the request of bank employees, it cannot be considered that the business was obstructed by deception.
The Supreme Court has previously denied the establishment of obstruction of business charges in cases where, during the process of reviewing qualifications based on an applicant's submission, the business officer accepted false reasons or supporting documents without suspicion, concluding that the applicant's deception did not create a risk of obstructing business. This ruling applies the same legal principle to the case of opening a bank account for the first time.
According to the legal community on the 20th, the Supreme Court's Second Division (Presiding Justice Lee Dong-won) overturned the original sentence of one year imprisonment against Mr. A, who was indicted for obstruction of business and violation of the Electronic Financial Transactions Act, and remanded the case to the Incheon District Court.
The Supreme Court found no issue with the appellate court's acquittal of Mr. A on the obstruction of business charge. However, it found a problem with the appellate court's acquittal of Mr. A on charges of violating the Electronic Financial Transactions Act by lending or storing access devices such as cash cards or OTP devices, knowing they would be used for crimes.
The court stated, "Although there are some inappropriate parts in the reasoning of the lower court, the conclusion that the defendant's actions do not constitute obstruction of business by deception is justified. There is no error in the lower court's judgment that would affect the verdict by violating the rules of logic and experience or misunderstanding the legal principles regarding obstruction of business by deception."
On the other hand, regarding the appellate court's acquittal on the violation of the Electronic Financial Transactions Act for lending or storing access devices knowing they would be used for crimes, the court said, "The appellate court misinterpreted the meaning of 'knowing that it will be used for a crime' as stipulated in Article 6, Paragraph 3, Subparagraph 3 of the Electronic Financial Transactions Act and the legal principles for establishing the violation of this provision, and failed to conduct necessary investigations, which affected the verdict." It added, "The grounds for appeal pointing this out are valid," and thus ordered a retrial.
Mr. A was indicted on charges of obstructing the work of financial institution employees by establishing a shell company in August 2020 at the request of Mr. B, whom he met through an acquaintance, and falsely opening a corporate account. He was also charged with violating the Electronic Financial Transactions Act by lending or storing cash cards, OTP devices, etc., linked to the account, knowing they would be used for voice phishing crimes.
The first trial court found Mr. A guilty on all charges and sentenced him to one year and two months in prison. However, the appellate court overturned some charges, including obstruction of business, and sentenced him to one year in prison.
The Supreme Court deemed the appellate court's acquittal on obstruction of business appropriate, reasoning that the opening of accounts for criminal use was due to the negligence of bank employees and other financial institution personnel who failed to thoroughly verify the applicant's false answers.
Previously, the Supreme Court stated in a similar case, "In tasks where acceptance is decided only if the applicant meets certain qualifications, it is assumed that the reasons stated in the application may not be factual. Therefore, if the business officer accepts false reasons or false supporting documents submitted by the applicant without sufficient verification, it is due to insufficient examination by the officer, and the applicant's deception does not create a risk of obstructing business, thus not constituting obstruction of business by deception."
The court applied the same legal principle in this case.
First, the court noted, "The defendant only engaged in passive acts such as filling in the financial transaction purpose as 'business transaction in progress' or 'corporate account opening' on the deposit transaction application form or financial transaction purpose confirmation form prepared in advance by the financial institution, and answering 'No' to questions about the intention to transfer access devices."
It continued, "The documents submitted by the defendant when applying for the corporate account, such as the business registration certificate, corporate registration certificate, corporate seal certificate, and articles of incorporation, only proved the business registration of the company named on the account or that the company was established according to the Commercial Act and related laws. There is no indication that the financial institution's business officer requested or verified additional documents to confirm the truthfulness of the financial transaction purpose."
The court stated, "The deposit transaction application form and financial transaction purpose confirmation form completed by the defendant when opening the corporate account cannot be considered documents guaranteeing the truthfulness of their contents. The submitted documents are basic documents required for opening a corporate account and do not confirm that the companies named on the accounts are operating normally or have a genuine financial transaction purpose."
Furthermore, the court said, "There is no special circumstance in this case where the business officer responsible for account opening review requested additional objective documents to verify the truthfulness of the financial transaction purpose stated in the deposit transaction application form and other documents, and the defendant forged or submitted false documents, causing the officer to fail to detect the falsehood and open the account." It concluded, "Therefore, the opening of each corporate account in this case is largely attributable to insufficient examination by the financial institution's business officer, and the applicant's deception did not create a risk of obstructing business, so it does not constitute obstruction of business by deception."
On the other hand, the court overturned the appellate court's acquittal on the violation of the Electronic Financial Transactions Act.
Article 6, Paragraph 3 of the Electronic Financial Transactions Act enumerates prohibited acts regarding the use and management of access devices. Subparagraph 3 prohibits "lending, borrowing, storing, delivering, or distributing access devices for the purpose of committing a crime or knowing that they will be used for a crime."
The appellate court acquitted some charges, reasoning that the prosecution failed to specify which crime Mr. A believed the access devices he lent would be used for, and that the cards Mr. A stored were prepared by police informants for arrest purposes, so there was no possibility of use in a crime.
However, the Supreme Court's judgment differed.
The court explained, "Considering the legislative purpose of the Electronic Financial Transactions Act and the intent behind the addition of Article 6, Paragraph 3, Subparagraph 3, the term 'knowing that it will be used for a crime' refers to acts subject to criminal punishment, i.e., acts that meet the elements defined in criminal law or other penal statutes." It added, "Therefore, if the access device is recognized to be used for acts subject to criminal punishment, it can be considered that the person 'knew it would be used for a crime' under the provision. It is not necessary to know the specific content of the crime, the penal provisions violated, or the crime name."
It further stated, "Such recognition can be based on conditional intent. Whether the person knew the access device would be used for a crime should be judged based on the defendant's subjective awareness at the time of lending or similar acts. It is unnecessary to consider whether the transaction partner intended to use the access device for a crime or whether the defendant committed the crime he recognized."
The court also noted, "The 'crime' defined in Article 6, Paragraph 3, Subparagraph 3 corresponds to the content intended or recognized by the defendant, so for the protection of the defendant's right to defense, the indictment must specify the crime." However, "Considering the purpose of the provision's addition, the indictment must specify the type or category of the 'crime' at least in a general way, but the indictment is not considered insufficiently specific just because the content of the intended crime is not detailed."
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