2015Gohap563 Violation of the Protection of Communications Secrets Act

Anal-O (70 - 1), clean-unifiedrs

Residential Seo-gu, Incheon

Hongcheoncheon District in Reference domicile

Kim Sung-hun (Lawsuits of Prosecution), Lee Jong-hee, and Kim Jong-woo (each trial)

Gyeong Law Firm, Attorney Park Jong-Un, Counsel for defendant-appellant

April 8, 2016

A defendant shall be punished by imprisonment for not less than six months and suspension of qualifications for six months.

However, the execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive.

Criminal History Office

No person shall record or listen to conversations between others that is not open to the public.

Nevertheless, on October 4, 2014, the Defendant, in a divorce lawsuit, installed a recording device on a passenger car under the name of the Defendant at around 37 high-level 47 high-level ○○○, and recorded the conversation between the above Kim○ and Kim○-dong ○○○ in order to secure evidence of the relationship between the Defendant’s wife and Kim○.

Summary of Evidence

1. Statement of the accused in the first protocol of trial;

1. Each statement made by the witness ○○○ and Kim○○ in the second trial records;

1. Examination protocol of the accused by the prosecution;

1. On-site photographs, tape-recording photographs, recording records;

Application of Statutes

1. Relevant Articles of criminal facts;

Articles 16(1)1 and 3(1) of the Protection of Communications Secrets Act

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (in respect of imprisonment, any provision in favor of the following grounds for sentencing):

(3)

1. Suspension of execution;

Determination as to the assertion of the Defendant and the defense counsel under Article 62(1) of the Criminal Act (with respect to imprisonment, consideration has been made more favorable than the following grounds for sentencing)

1. The assertion.

Since the instant recording machine is a vehicle owned by the Defendant, at least the Defendant is a place open to the public, it does not constitute a violation of the Protection of Communications Secrets Act where the Defendant installed a recording machine on the said vehicle and recorded a conversation between Kim ○○ and ○○○○○○○.

Article 3(1) of the Protection of Communications Secrets Act provides that “The recording or listening of conversations between others that are not open to the public is prohibited.” The purport of Article 3(1) is that a third party, who does not participate in the conversation, shall not record or listen to the speech between others (see Supreme Court Decision 2007Do9053, Dec. 27, 2007, etc.). The conversation between the Defendant’s wife and the ○○○○○○ and the ○○○○○, which is located in the vehicle operated by the Defendant’s wife, constitutes “the conversation between others not open to the public” under the above Act. Even if the Defendant’s place of recording, as alleged by the Defendant, is owned by the Defendant, it cannot be determined otherwise insofar as the Defendant’s right to manage the said vehicle is recognized.

Reasons for sentencing

1. The scope of punishment: Imprisonment for not less than six months but not more than fifteen years and suspension of qualifications for not more than five years;

2. Determination of sentence 1);

The defendant had committed the crime of this case before a divorce lawsuit with the victim Kim○-○, and committed the crime of this case. This is likely to infringe upon the privacy of the victims, and the defendant installed a tape recorder.

Although the purpose is to check the state of a motor vehicle, there is no evidence to support it, and the victim want to be punished by severe punishment, etc. are disadvantageous conditions to the defendant.

However, considering the fact that the defendant has no criminal records, the punishment against the defendant shall be determined as above in consideration of the defendant's age, sex, environment, motive and background leading the defendant to commit the instant crime, circumstances after committing the instant crime, etc.

Justices Kim Jin-chul

Judges Shin Jae-ia

Judges Eslives

1) The instant crime does not apply to the sentencing guidelines.