(b) Violation of the Game Industry Promotion Act;

Attorney Kim Gyeong-hwan et al.

(B) make decisions.

1. Of the facts charged and the judgment of the court below, the summary of the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information Network Act”) is as follows. The Defendant sold a program with a function to automatically control the other party from the “○○○○ Game operated by the Nonindicted Limited Company (hereinafter “instant game”) (hereinafter “instant program”), thereby violating Articles 70-2 and 48(2) of the Information and Communications Network Act.

The lower court found that the instant program constituted a malicious program that could interfere with the operation of an information and communications system, etc. prescribed in Article 48(2) of the Information and Communications Network Act, and found the Defendant guilty of this part of the facts charged.

2. Whether it falls under a malicious program under Article 48 (2) of the Information and Communications Network Act;

A. Article 48(2) of the Information and Communications Network Act provides, “No person shall destroy, destroy, alter, or forge an information and communications system, data, program, or similar without justifiable grounds, or deliver or spread a program that may interfere with its operation (hereinafter referred to as a “malicious program”).” Article 70-2 of the same Act provides, “a person who delivers or distributes a malicious program in violation of Article 48(2) shall be punished by imprisonment with prison labor for not more than seven years or by a fine not exceeding 70 million won.”

Articles 70-2 and 48(2) of the Information and Communications Network Act recognize the establishment of a crime by only transmitting or spreading malicious programs, considering the impact of malicious programs on an information and communications system, data, program, etc. (hereinafter referred to as “information and communications system, etc.”), and do not require that such act may result in the damage, destruction, alteration, fabrication, or interference with the operation of an information and communications system, etc. due to such act. Whether a malicious program constitutes a malicious program shall be based on the program itself, and shall be determined by comprehensively taking into account the purpose of use and technical composition, operating method, impact on an information and communications system, etc., the consent of an operator for the installation or operation of the program, etc. (see Supreme Court Decision 2017Do16520, Dec. 12, 2019).

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

The program of this case aims to help users of the game of this case more easily match and shoot the other party. From the first success after the shooting first success, the user of the game of this case automatically applies the other party character. When the user of the game of this case first shoots the other party character, a red physical strength appears in the other party character location. The program of this case is designed to analyze the image of the body part, recognize the same image on the game screen, and repeatedly carry out the operation of moving the Masker to the relevant coordinates.

The instant program is installed on a user’s computer according to the user’s own intent and does not alter the information and communications system, game data, or program itself. The instant program is limited to allowing a more easy assistance and shooting for the other party character to the extent that it operates as scheduled by the information and communications system, etc., and, even if the instant program is implemented, it is basically carried out by the same channel and method as that for the ordinary user directly directing and shooting the other party character. There is no evidence suggesting that the instant program has interfered with the performance of functions of the information and communications system, etc. by delaying the access time to the server of the other users or making it difficult to access the server difficult, and causing mass network traffic to the server. Examining the foregoing facts in light of the aforementioned legal principles, it is difficult to readily conclude that the instant program falls under the “malicious program” under Article 48(2) of the Information and Communications Network Act with the evidence submitted by the prosecutor alone. The lower court erred by misapprehending the legal doctrine on the “malicious program” under Article 48(2) of the Information and Communications Network Act, thereby affecting the conclusion of the judgment.

3. Conclusion

The part of the lower judgment against the Information and Communications Network Act should be reversed. Since the lower court rendered a single sentence on the grounds that this part of the facts charged and the remainder of the facts charged constitute an ordinary concurrent crime, the lower judgment should be reversed in its entirety.

Without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok