2016Do10480 Interference with business, such as computers

A person shall be appointed.

Defendant

Law Firm B

Attorney C, D, and E

Law Firm F

Attorney G, H, I, and J

Seoul Central District Court Decision 2015No3265 Decided June 23, 2016

December 29, 2016

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

ex officio make decisions.

1. The Criminal Procedure Act provides that the indictment shall be submitted to the competent court in filing a public prosecution, and the name of the defendant and other matters by which the defendant can be identified, the name of the crime, the facts charged, and the applicable provisions of Acts shall be stated in the indictment, and Article 254(1) and (3) of the Act provides that a copy of the indictment shall be served on the defendant or his defense counsel without delay when the indictment is instituted (Article 266).

Except as otherwise expressly provided for in Acts, the date of preparation and the competent public official litigation shall be stated, and the name and seal or signature shall be affixed to the documents prepared by the public official (Article 57(1)), and the written indictment shall contain the name and seal or signature of the public prosecutor.

As such, the Criminal Procedure Act’s strict method of written indictment is aimed at clarifying the subject of adjudication by the court and ensuring sufficient defense of the defendant. Thus, prosecution without complying with the method constitutes a case where prosecution procedure becomes invalid in violation of the provisions of law.

Therefore, if a prosecutor prepares an electronic document in which the prosecutor can open, read, or print out a list of crimes, which is part of the facts charged, through a computer program, and then submits the storage device itself, without printing it in a paper document, with the written indictment attached thereto, only the part recorded in the document can be deemed a lawful indictment. This is because there is no separate provision allowing such a public prosecution, and it cannot be viewed as a “written document,” which is part of the indictment, as a part of the indictment. This is because there is a substantial need to allow a public prosecution in electronic form because the quantity of a document in electronic form is limited, or the defendant and his defense counsel responded to the pleading without raising an objection.

In a case where a prosecutor institutes a public prosecution in the above manner, the court shall decide on the facts charged only with the part recorded in the written indictment without considering the document part stored in the storage device. If the contents of the indictment are not specified, if the facts charged are not specified, the prosecutor must be required to specify the facts charged, and if not, the public prosecution is dismissed (see Supreme Court Decision 2015Do3682, Dec. 15, 2016).

2. The record reveals the following facts.

A. The summary of the facts charged in this case as stated in the indictment is as follows.

The Defendant, around November 2014, was equipped with a system that provides approximately 100 PCs installed in each nationwide area, and operated a program that functions as a virtual data tower, with a remote control program installed to control the so-called 400 PCs scattered in each nationwide area in a remote control program.

K posted a letter to the effect that it operates the above upper level of search, automatic completion, search, etc. on the Internet site, etc., on March 7, 2015, at the request of L’s L’s L’s search order, etc. Around March 7, 2015, the Defendant and K sent it to the Defendant. By automatically entering the search language requested from L’s L’s above remote control system into the portal site and allowing the Defendant to automatically re-examine it on the portal site, the external appearance as seen above the search language connected to the portal site at each nationwide level, and the subject of the request by the requester would be 0 four times more than 20 days more than 20 days more than 15 days more than 25 days more than 4 days more than 25 days more than 4 days more than 20 days more than 4 days more than 15 days more than 4 days more than 25 days more than 15 days more than 4 days more than 20 days more than 200.

B. The main text of the above indictment and the attached Form I, II, III include only the date and time of registration, ID, target portal operator, target speed, and the key and kidds in connection with the request for operation, and do not contain such specific contents as to the remaining parts.

(c) However, in respect of CDs attached to the indictment by the Prosecutor, the CD files containing the date and time of registration, target portal operators, target KIKO, associated kidwards requesting operations, and kidrid numbers are stored with respect to all associated search terms, inspection automatically completion, search order, and upper-tier exposure operations in the search order.

3. Examining the foregoing facts in light of the legal principles as seen earlier, the CDs attached to the indictment or the stored X-cell files cannot be deemed as the “written indictment” as part of the indictment. Therefore, the part recorded in the above X-cell files cannot be deemed as lawful indictment.

Meanwhile, as a matter of principle, interference with multiple business by interference with computer, etc. constitutes separate crimes. Therefore, among the facts charged in the instant case, the part concerning the registration date, ID, target portal operator, target portal, target download, operation connection, and the part of related inspection, which is recorded in the indictment, is specified in the indictment in detail as to automatic inspection, automatic completion, search ranking manipulation, etc. However, the remaining operational acts only include the total number of times, and cannot be said to have been specified in the facts charged because the aforementioned contents are not entirely stated.

Therefore, as a result, the first instance court demanded the prosecutor to specify the portion of the facts charged in the instant case, which is not specified as above, and if the prosecutor did not specify, it should have dismissed the prosecution on this part, and it was found guilty on this part without taking such measures. In addition, the lower court upheld the first instance judgment on that part. In so doing, it erred by misapprehending the legal principles on the method of prosecution and the specification of facts charged, thereby adversely affecting the conclusion of

4. Therefore, the part of the judgment of the court below that was not specified as above should be reversed. Since the court below maintained the judgment of the court of first instance that sentenced one punishment on the ground that the remaining part and the remaining part are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below shall be

Therefore, without examining the Defendant’s 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 on the bench.

Justices Kwon Soon-il

Justices Park Poe-dae

Justices Park Young-young

Justices Kim Jae-in