〈Case concerning whether punishment is remitted under the special provision on crimes between relatives〉

【Holding】

[1] Where a statute or statutory provision concerning criminal punishment prescribes grounds on which a person is not punished, whether a decision of unconstitutionality regarding such statutory provision has retroactive effect under Article 47(3) of the Constitutional Court Act (negative), and whether such statutory provision loses its effect from the date of the decision of unconstitutionality pursuant to Article 47(2) of the same Act (affirmative)

[2] Whether Article 328(1) of the Criminal Act (as amended by Act No. 7427 on March 31, 2005), which provides for remission of punishment as a ground for exclusion of punishment, loses its effect from the date of the Constitutional Court's decision of nonconformity with the Constitution rendered on June 27, 2024 regarding that provision (affirmative)

[3] The meaning of "information processing" and "acquisition of pecuniary benefit" in the crime of fraud by use of computers, etc. / Whether the act of acquiring pecuniary benefit by accessing the internet site or mobile phone application of a merchant or financial institution and, without the consent of another person, entering that person's personal information and the credit card number and password issued in that person's name, thereby paying for goods or services or obtaining a credit loan from a financial institution, constitutes the crime of fraud by use of computers, etc. against the merchant or the lending financial institution (affirmative)

[4] Where the statement of the charged facts is misleading or unclear, whether the court must exercise its authority to request clarification from the prosecutor in order to clarify the purport thereof (affirmative)

【Summary of Decision】

[1] In principle, a statute or statutory provision that has been found unconstitutional through the Constitutional Court's adjudication on the constitutionality of statutes loses its effect from the date of that decision (Article 47(2) of the Constitutional Court Act). However, as an exception, a decision of unconstitutionality regarding a statute or statutory provision concerning criminal punishment has retroactive effect (Article 47(3) of the Constitutional Court Act), and the "statute or statutory provision concerning criminal punishment" to which the exceptional retroactive effect of a decision of unconstitutionality applies means substantive law that serves as the direct basis for criminal punishment. However, even if a statute or statutory provision concerns criminal punishment, if it prescribes grounds on which a person is not punished, recognizing the retroactive effect of the decision of unconstitutionality would instead cause criminal disadvantage to persons who were not criminally punished under that provision; therefore, including such a case within the scope of application of Article 47(3) of the Constitutional Court Act would seriously undermine legal stability and the interest of protecting the reliance of defendants who were already not subject to punishment, contrary to the purpose of that provision. Accordingly, a decision of unconstitutionality regarding such a statutory provision does not have retroactive effect under Article 47(3) of the Constitutional Court Act, and the statutory provision loses its effect from the date of the decision of unconstitutionality pursuant to Article 47(2) of the same Act.

[2] Article 328(1) of the Criminal Act (as amended by Act No. 7427 on March 31, 2005) provides that "the punishment for a crime under Article 323 committed between lineal blood relatives, spouses, relatives living together, family members living together, or their spouses shall be remitted," and Article 354 of the Criminal Act applies the above provision mutatis mutandis to the crime of fraud, etc. However, on June 27, 2024, the Constitutional Court rendered a decision of nonconformity with the Constitution holding that "Article 328(1) of the Criminal Act (as amended by Act No. 7427 on March 31, 2005) does not conform to the Constitution," and at the same time issued an order suspending its application, stating that "courts and other state agencies and local governments shall suspend the application of the above statutory provision until the legislature amends it, with December 31, 2025 as the deadline" (Constitutional Court en banc Decision 2020Hun-Ma468 et al., June 27, 2024; hereinafter the "2020Hun-Ma468 et al. Decision of Nonconformity").

A decision of nonconformity with the Constitution by the Constitutional Court is a modified form of decision not provided for in the Constitution or the Constitutional Court Act, and constitutes a decision of unconstitutionality regarding a statutory provision. However, because Article 328(1) of the Criminal Act provides for remission of punishment as a ground for exclusion of punishment, recognizing the retroactive effect of the 2020Hun-Ma468 et al. Decision of Nonconformity would instead cause criminal disadvantage to persons whose punishment had been remitted under that provision. Therefore, the above provision should be regarded as losing its effect from the date of the 2020Hun-Ma468 et al. Decision of Nonconformity.

[3] Article 347-2 of the Criminal Act (fraud by use of computers, etc.) punishes the act of acquiring pecuniary benefit, or causing a third party to acquire it, by entering false information or improper commands into a computer or other information processing device, or by entering or altering information without authority, thereby causing information to be processed. Here, "information processing" corresponds to the victim's act of disposition in the crime of fraud, so the processing of calculations or data based on the false information entered, etc. must directly bring about the result of a disposition of property, and the "acquisition of pecuniary benefit" by the actor or a third party must take place in the course of information processing by a computer, etc., without the intervention of any act of disposition by a person.

The act of acquiring pecuniary benefit by accessing the internet site or mobile phone application of a merchant or financial institution and, without the consent of another person, entering that person's personal information and the credit card number and password issued in that person's name, thereby paying for goods or services or obtaining a credit loan from a financial institution, is an act of acquiring pecuniary benefit by entering information without authority into a computer or other information processing device and causing information to be processed, and constitutes the crime of fraud by use of computers, etc. against the merchant or the lending financial institution.

[4] The presiding judge may, in order to clarify the litigation relationship, request the prosecutor, the defendant, or defense counsel to clarify matters of fact and law or urge them to submit proof (Article 141(1) of the Rules of Criminal Procedure). Where the purport of the charged facts is clear, the court need not exercise its authority to request clarification, but where the statement of the charged facts is misleading or unclear, the court must exercise its authority to request clarification from the prosecutor pursuant to Article 141 of the Rules of Criminal Procedure in order to clarify the purport thereof.

【Referenced Statutes】

[1] Article 47(2) and (3) of the Constitutional Court Act [2] Articles 328(1) and 354 of the Criminal Act; Article 47(2) and (3) of the Constitutional Court Act [3] Article 347-2 of the Criminal Act [4] Article 254 of the Criminal Procedure Act; Article 141(1) of the Rules of Criminal Procedure

【Referenced Precedents】

[1] Supreme Court Decision 2020Do68, February 11, 2022 (Gong2022Sang, 584)
Constitutional Court en banc Decision 90Hun-Ma110, 136, January 16, 1997 (Hun-Gong20, 229)
Constitutional Court en banc Decision 2005Hun-Ma764, 2008Hun-Ma118, February 26, 2009 (Hun-Gong149, 458)
[2] Supreme Court Decision 2017Do8610, May 28, 2020 (Gong2020Ha, 1288)
Constitutional Court en banc Decision 2020Hun-Ma468, 2020Hun-Ba341, 2021Hun-Ba420, 2024Hun-Ma146, June 27, 2024 (Hun-Gong333, 1182)
[3] Supreme Court Decision 2002Do2363, January 10, 2003 (Gong2003Sang, 663)
Supreme Court Decision 2006Do3126, July 27, 2006 (Gong2006Ha, 1584)
Supreme Court Decision 2006Do6209, March 16, 2007
Supreme Court Decision 2012Do4347, June 28, 2012
Supreme Court Decision 2013Do16099, March 13, 2014 (Gong2014Sang, 892)
Supreme Court Decision 2019Do14960, February 27, 2020
[4] Supreme Court Decision 2017Do3448, June 15, 2017 (Gong2017Ha, 1513)
Supreme Court Decision 2023Do14444, 2023Bo-Do87, December 28, 2023



(Source: Supreme Court Decision 2024Do19846, March 13, 2025 | Judicial Information Disclosure Portal, Precedents)