[1] The meaning of "information" and "damage" under Article 49 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[2] The degree of specification of the facts charged as to the crime of interference with business by obstruction of computers, etc. committed against an unspecified number of computers, etc.

[3] In a case where the Defendants were indicted for obstruction of business by obstructing Internet users’ use of the Internet by installing their programs on the computers of unspecified Internet users so that they could not be used or installed normally, the case affirming the judgment below holding that the facts charged was not specified on the ground that the written indictment alone does not reveal the contents of business interfered with the victim, who is the main agent of business, on the ground that the contents of the written indictment cannot be known

[1] Article 49 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007; hereinafter “former Act”) provides that “No person shall damage another person’s information processed, stored, or transmitted by an information and communications network, or infringe, use, or divulge another person’s secrets.” However, the concept of “information” does not include the provisions of Article 2(1) of the former Act, and Article 2(2) of the same Act provides that “The definitions of terms used in this Act shall be governed by the Framework Act on Information and Communications Network Utilization except as provided in paragraph (1).” Article 2 subparag. 1 of the former Framework Act on Information and Communications Network Utilization (wholly amended by Act No. 9705 of May 22, 2009) provides that “No person shall damage another person’s information processed, stored, or transmitted by an information and communications network, or any other person’s information expressed, expressed, or disclosed in the form of an information or image or image.”

[2] The crime of interference with business by obstruction of computers, etc. under Article 314(2) of the Criminal Act refers to the victim’s duty as a guardian. In the event of a crime committed by an information processing unit, such as a computer, etc., which is used by many and unspecified persons for the performance of duties, the specific subject of duties using the information processing unit, such as a computer, etc., should be specified at least to the extent that the duties can be deliberated and determined. Furthermore, if the duties are not reached, it is difficult to view that the duties were lawfully specified as the facts charged.

[3] The case affirming the judgment below holding that in case where the defendants were prosecuted for obstruction of business by obstructing Internet users from using their program in a normal way by installing their program on the computers of unspecified Internet users and preventing them from using or installing their program normally, and thereby obstructing the Internet users’ use of the Internet, the case affirming the judgment below holding that the indictment was not specified on the ground that the written indictment alone does not reveal who is the victim and several persons are not specified, and it is impossible to find out whether the defendant was prosecuted for several crimes because the contents of the interfered business cannot be identified in detail, and thus, it cannot be examined and determined as to whether the interfered business constitutes the

[1] Articles 2(2), 49, and 62 subparag. 6 (see current Article 71 subparag. 11) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007), Article 2 subparag. 1 (see current Article 3 subparag. 1 of the Framework Act on National Informatization) of the former Framework Act on Informatization Promotion (amended by Act No. 9705 of May 22, 2009) / [2] Article 314(2) of the Criminal Act, Article 254(4) of the Criminal Procedure Act / [3] Article 314(2) of the Criminal Act, Article 254(4) of the Criminal Procedure Act, Article 254(4) and Article 327 subparag. 2 of the Criminal Procedure Act

[1] Supreme Court Decision 2008Do12119 Decided March 10, 201 / [2] Supreme Court Decision 2008Do1187 Decided March 12, 2009

Defendant 1 and four others

Defendants and Prosecutor

Law Firm Dawon, Attorney Kim Jae-in

Seoul Central District Court Decision 2007No176 Decided October 17, 2008

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the Defendants’ grounds of appeal

A. As to Defendant 1, 2, 3, and 4’s obstruction of business

Based on the circumstances indicated in its reasoning, the lower court determined that the above Defendants interfered with the business of providing Korean KIKO services by allowing Internet users who did not know that the program includes the function as indicated in its reasoning in the lower court’s decision (hereinafter “Defendant 5-based program”) to use a deceptive scheme that allows Defendant 5 to install the Defendant’s plug program by means of liquid X-ray, thereby preventing the victim Nonindicted Co. 1 and Nonindicted Co. 2 from normally operating the program.

In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

B. As to the Defendants’ violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. due to the Defendants’ malicious program prisoners

In light of the records, the court below's decision on the ground of its stated reasoning is just in holding that the protection caps in the judgment of the court below fall under the "malicious program" under Article 48 (2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007; hereinafter "former Information and Communications Network Act"), and found the defendant guilty of this part of the facts charged. There is no error of law such as misunderstanding of legal principles

C. As to the remaining arguments

The remaining grounds of appeal are nothing more than criticism against the selection of evidence and the recognition of facts which belong to the exclusive jurisdiction of the court below, or merely criticizes the judgment of the court below in its independent opinion, and it cannot be a legitimate ground of appeal.

2. Judgment on the grounds of appeal by the prosecutor

A. As to Defendant 1, 2, and Defendant 5’s violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc., due to the damage to Defendant 1, 2, and Defendant 5’s processed information

Article 49 of the former Information and Communications Network Act provides that "no person shall damage any other person's information processed, stored, or transmitted through an information and communications network, or infringe, use, or divulge any other person's secret." However, the concept of "information" does not include the provisions of Article 2 (1) of the former Information and Communications Network Act, and Article 2 (2) of the same Act provides that "Except as otherwise provided in paragraph (1) of the same Act, the definitions of terms used in this Act shall be governed by the Framework Act on Information and Communications Network Promotion," and Article 2 subparagraph 1 of the former Information and Communications Network Act (wholly amended by Act No. 9705 of May 22, 2009) at the time of the enforcement of the former Information and Communications Network Act (wholly amended by Act No. 9705 of May 22, 2009) provides that "any kind of data or knowledge expressed by a natural person or corporation by optical or electronic processing for a specific purpose, which does not affect the concept of "information" under Article 49 of the former Information and Communications Network Act by 10.

In light of the above legal principles and the records, when Internet users who installed the plug program of competitors such as Nonindicted Co. 1, etc. enter Korean short language into the webbroer’s address entry, the questioning language in the form of Internet address processed through the plug program of the above competitors may be deemed to constitute information provided for in Article 49 of the former Information and Communications Network Act. However, this is merely the Internet users’ information controlled and managed by the Internet users, and cannot be seen as the information of the competitor that produced and distributed the relevant pluger program.

Furthermore, as to whether the above Defendants’ act of changing the Internet users’ address corresponding to the domain name name included in the above Internet address format, which is information of the Internet users, constitutes an act of damaging the Internet users’ information, the purpose of entering the Korean short language into the Internet users’ access to the web beer’s address in case where the web site corresponding to the Korean short language is registered on the web beer’s key server of the companies that produced and distributed the above Korean short language, if the web site is not directly connected to the above Korean short language, it is intended to obtain the result of the web site search, etc. related to the Korean short language, and among them, it cannot be deemed that the above Defendants’ act was for the purpose of searching the Internet users through the NAN server through the specific company’s display method, and it is difficult to conclude that the above Defendants’ act does not constitute an act of damaging the Internet users’ information under Article 4 of the former Information and Communications Network Act as it does not constitute an act of damaging the Internet users’ information.

In the same purport, the court below is just in finding the Defendants not guilty of this part of the charges, and there is no error in the misapprehension of legal principles as to the act of damaging another person's information under Article 49 of the former Information and Communications Network Act or in violation

B. As to Defendant 1, 2, 3, and 4’s obstruction of business, such as computer, etc.

Article 314(2) of the Criminal Act provides that “a person who interferes with another’s business by destroying an information processing unit, such as a computer, or a special media record such as electronic records, or by inputting a false information or improper order into an information processing unit, or by causing any trouble in data processing through other means,” the victim’s duties are protected. If a crime under the above provision is committed against an information processing unit, such as a computer, etc. used by an unspecified number of people for the performance of their duties, the victim’s duties are specified to the extent that the person in charge of the duties using the information processing unit such as the computer, etc., is specific, and further, whether the duties are the protection target chain business under the above provision, and if not, it is difficult to view that the facts charged are legally specified (see Supreme Court Decision 2008Do1187, Mar. 12, 2009).

In light of the above legal principles and the records, the facts charged as to interference with the business of the victim, such as computer, etc., are merely stated in the facts charged, and it cannot be seen whether the victim, the Internet user, was indicted for several interference with business, such as computer, because the number is not specified, and the contents of the interfered with business cannot be identified. Thus, it cannot be examined and determined as to whether the protected customer chain business under Article 314 (2) of the Criminal Act is operated. Thus, since the indictment does not contain specific criminal facts, it constitutes “when the procedure for filing a public prosecution is invalid in violation of the provisions of law” under Article 327 (2)

In the same purport, the court below is just in holding that this part of the indictment should be dismissed, and there is no error in the misapprehension of legal principles as to the specification of the facts charged.

3. Conclusion

Therefore, all appeals by the Defendants and the Prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)