접근매체의 양도제한은 위헌인가? = Is Restriction on Acquisition or Transfer of Means of Access Unconstitutional?

다국어 초록 (Multilingual Abstract)

Electronic Financial Transaction Act(hereinafter referred to as “EFTA”) of 2007 provided that “No one shall commit any offence to acquire or transfer means of access, or to accept the means of access subject to a right of pledge, unless specifically provided in other Acts. However, the previous paragraph shall not apply to cases where electronic prepayment means under Article 18 or electronic currencies shall be transferred or offered as security”[§6(3)]. Any person who has acquired or transferred, or has borrowed or lent means of access in violation of Article 6(3) shall be punished by imprisonment of not more than one year or by a fine not exceeding ten million won[§49(5)]. These provisions ware succeeded by the EFTA of 2009.
In 2011, the Constitutional Court of Korea, in the case of 2010Hun-Ba115, held that Article 6(3) of the EFTA which prohibited acquisition or transfer of means of access for electronic financial transaction does not violate the principle of free contract and protection of private property, or equality under the law, and thus is not unconstitutional.
Article 6(3) of the EFTA has the purpose for ensuring prudential development and reliability of electronic financial transactions by prohibiting acquisition or transfer of means of access. If the law permits free acquisition or transfer of the means of access, persecution against debtor, unauthorized fund transfer, or fraud could be occurred. As the case may be, object of related contract will be contrary to good morals and other social order(cf. Civil Code §103), or related contract will be juristic act which has conspicuously lost fairness(cf. Civil Code §104).
Previous and current Article 6(3) of the EFTA provided the minimum limitation on the right of private property, and permitted acquisition or transfer of the means of access if specifically provided in other Acts with respect to the use and management of means of access. Therefore, the provision is not contrary to equality under the law or guaranty of the property right under the Constitution.

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