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The prosecutor's appeal is dismissed.
Reasons
The main point of the grounds for appeal is that the Defendant, by misapprehending the legal principles of the grounds for appeal, constitutes a malicious program under Article 48(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”), that interferes with the operation of the smartphone system, such as remotely confirming and controlling smartphones’ ms information, GPS information, recording conversations between others.
The sentence of the court below's unfair sentencing (eight months of imprisonment, two years of suspended sentence, one year of suspended qualification) is too uneasy and unfair.
Judgment
With respect to the misapprehension of legal principles, the summary of this part of the facts charged is that the defendant installed the instant program on the victim's smartphone and delivered or disseminated a program that could interfere with the victim's operation of the smartphone system.
As to this, the lower court presumed that ① a person who possesses and uses a smartphone is the legitimate operator of that smartphone, and exceptional cases where a smartphone is used by a person who possesses or uses it, and that the program of this case is installed only when the user of the smartphone selects him/her from his/her possession or control relationship; ② The program of this case is installed only when the user of the smartphone selects him/her from his/her inside; there is no obstacle in confirming and deleting the program as indicated in the judgment on the smartphone; and there is no unique function that can be installed without the express consent of the user of the smartphone; or combined with the program of this function, and is distributed in the information and
In the absence of evidence to determine the person, ③ The Defendant stated the instant program as “for the purpose of prevention of theft”, and the website address of the instant program also refers to the loss of “lst’s “including”, the instant program is officially distributed in Edmarket, and ④ The instant program is smartphone.