Whether a “personal information manager” under Article 2 subparag. 1 of the former Personal Information Protection Act, who is subject to Article 71 subparag. 5 of the former Personal Information Protection Act, who manages or was managing personal information, is included in the “person who manages or was managing the personal information” under Article 59 subparag. 2 of the same Act in addition to “personal information manager” under Article 2 subparag. 5 of the same Act (affirmative)

Article 71 Subparag. 1 of the former Personal Information Protection Act (amended by Act No. 12504, Mar. 24, 2014; hereinafter “Personal Information Protection Act”) provides that a person who provides a third party with personal information without consent of the subject of information in violation of Article 17(1) and a person who is aware of such fact may be punished. Article 17(1) provides a “personal information manager” with consent of the subject of information or within the scope of the collected purpose; Article 71 subparag. 1 and Article 17(1) of the same Act provides that “personal information manager shall be punished separately for the act of providing personal information without consent of the subject of personal information manager and the act of receiving such personal information without permission; Article 59 subparag. 2 of the Personal Information Protection Act (including a person who manages or processed the personal information without consent of the subject of personal information; Article 15(2), Article 17(1), Article 18(1) of the same Act provides that “any other person who is subject to the management of personal information, other than an entity subject to the management of personal information manager’s.”

Subparagraph 1, 2, and 5 of Article 2 of the former Personal Information Protection Act (Amended by Act No. 12504, Mar. 24, 2014); Articles 15, 17, 18, 59 subparag. 2, and 71 subparag. 1 and 5 of the same Act

Defendant 1 and one other

Prosecutor

Seoul Northern District Court Decision 2015No166 decided May 21, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

The summary of the facts charged in this case is that Defendant 2, the head of the management office of the apartment of this case, received a written consent for the dismissal of the representative of the Dong (hereinafter “instant written consent for dismissal”), which was jointly signed by the Chairperson of the Management Office of the apartment of this case, in order to examine the legitimacy of the request for dismissal, and then disclosed personal information that he/she came to know in the course of his/her duties by providing perusal to Defendant 1 of the 102 Dong Dong representative, who is the person subject to the consent for dismissal, on February 19, 2014. Defendant 1 received personal information for an unlawful purpose by being aware of the aforementioned circumstances, and the applicable provisions are Articles 71 subparag. 5 and 59 subparag. 2 of the former Personal Information Protection Act (amended by Act No. 12504, Mar. 24, 2014; hereinafter “Personal Information Protection Act”).

The court below partially cited the judgment of the court of first instance. Article 71 subparag. 5 of the Personal Information Protection Act and Article 59 subparag. 2 of the same Act stipulate the act of disclosing personal information that a “person who manages or processed personal information” came to know in the course of performing his/her duties. Article 2 subparag. 5 of the same Act defines a public institution, corporation, organization, individual, etc. that processes personal information directly or through another person as a “personal information manager,” and even if Defendant 2 temporarily possessed the personal information of the occupants as stated in the written consent for dismissal of this case, the court affirmed the judgment of the court of first instance that acquitted the facts charged of this case on the ground that it does not constitute the elements of Article 71 subparag. 5 and subparag. 2 of the same Act because it does not constitute a “personal information manager,” who processes personal information by himself/herself or through another person for the purpose of performing his/her duties under Article 2 subparag. 5 of the same Act.

However, the judgment of the court below on the premise that Article 59 subparag. 2, who is subject to Article 71 subparag. 5 of the Personal Information Protection Act, is limited to “personal information manager” under Article 2 subparag. 5 is not acceptable for the following reasons.

Article 71 Subparag. 5 of the Personal Information Protection Act prohibits a person who divulges personal information he/she has become aware of in the course of performing his/her duties or provides another person with personal information without authority, and a person who knowingly receives such personal information for profit or for an illegal purpose, in violation of Article 59 Subparag. 2 of the same Act. Article 59 Subparag. 2 of the same Act prohibits a person who knowingly divulges or provides another person with such information without authority to use such information.

① Article 71 Subparag. 1 of the Personal Information Protection Act provides that a person who provides personal information to a third party without the consent of a subject of information in violation of Article 17(1) and a person who has been provided with such personal information shall be punished. Article 17(1) provides that a “personal information manager” may provide such personal information within the scope of the intended purpose. As to the act of providing personal information without consent of a subject of information and the act of receiving such personal information without permission, Article 71 subparag. 1 and Article 17(1) can be punished separately pursuant to Article 71 subparag. 2 of the aforementioned Act. Article 59 subparag. 2 of the aforementioned Act provides that “the person who manages or processed the personal information without consent of a subject of information,” Article 15(2), Article 17(2), and Article 18(2) of the Personal Information Protection Act (limited to the provision of personal information for purposes other than the purpose of use or provision of personal information) and that “the person who manages the personal information without consent of a subject of personal information manager” can be deemed to be prohibited or otherwise prohibited from processing of personal information.

Nevertheless, the lower court determined that Defendant 2’s “personal information manager” cannot be deemed to be a “personal information manager” who manages personal information files, and thus, did not prove any crime or commit any crime against the Defendants. In so doing, the lower court erred by misapprehending the legal doctrine on the subject of application of Articles 71 subparag. 5 and 59 subparag. 2 of the Personal Information Protection Act, which affected the conclusion of the judgment. The Prosecutor’s ground of appeal pointing this out is with merit (B), the head of the management office of the Housing Act, which is the managing body of the Housing Act, collects personal information, such as the name, date of birth, telephone number, etc. of the occupants, and systematically arranged according to certain rules such as the same and several items, and thus, it is relatively evident that Defendant 2 was operating personal information gathering, such as the occupant card, which was systematically arranged pursuant to the above and several items. However, without examining, it is difficult to readily accept the lower court’s judgment that the aforementioned Defendant was subject to the written consent of dismissal.

Therefore, 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 on the bench.

Justices Kim Chang-suk (Presiding Justice)