Defendant 1 and eight others

Prosecutor, Defendant 1 and four others

Round Round

Law Firm Sejong, et al.

Seoul Central District Court Decision 2008 Godan6203, 2008 Godan7319 (Consolidated), 2008 Godan7521 (Consolidated) Decided February 5, 2010

All appeals filed by the prosecutor and the defendant 1, 2, 4, 8, and 9 are dismissed.

1. Summary of grounds for appeal;

(a) A prosecutor;

1) mistake of facts (as to the defendant 5, 6, and 7)

Comprehensively taking account of each evidence submitted by the prosecutor, it is sufficiently recognized that Defendant 5, 6, and 7, running a fireworks delivery company, conspired with Defendant 1, 4, or Defendant 1, and 3, engaging in an advertisement “sphone link” by a competitor company.

2) As to the inappropriate sentencing (as to the defendant 1, 2, 3, 4, 8, and 9)

Each sentence of the lower court (Defendant 1, 3, and 4: one year of imprisonment, two years of probation, two hours of a community service order, 160 hours of a community service order, Defendant 2: imprisonment for eight months of a stay of execution, two years of a stay of execution, two years of a community service order, Defendant 160 hours of a community service order, Defendant 8, and 9: each fine of five million won) is too unreasonable.

B. Defendant 1 and 2 - Unreasonable sentencing

Each sentence of the court below is too unreasonable because it is too unreasonable.

C. Defendant 4

1) Legal principles

A) Relevant parts, such as the distribution of “ex eb.ex” program (hereinafter “instant program”) (Article 2-A(A) of the original judgment)

○ The instant program does not constitute a malicious program.

○ The instant program is merely a computer user’s downloaded on his own computer by his own will, and thus, the Defendant cannot be deemed to have invaded on the information and communications network.

B) Relevant parts, such as automatic completion fishing generation (Article 3-3(c) of the original decision)

○ An act of inputting search language using the instant program cannot be deemed as an act of entering false information or unlawful orders, and thus, it cannot be deemed as an act of obstructing duties, such as search language service, etc., of NAV as a result of an obstacle to information processing.

○ Also, the creation of automatic completion language, etc. using the instant program and the rise in its ranking cannot be deemed as an impediment to an information and communications network.

C) An illegal character on a sponsor link (the part of Section 4-A of the original Decision)

○ The act of charactering NAV’s sponsor link using the instant program cannot be deemed as the act of entering NAV’s information or improper order.

○ It cannot be deemed that the victims’ advertisement and fireworks delivery service have been hindered due to the occurrence of an impediment in the information processing due to the character’s act.

The above character act does not constitute a crime of fraud by using computers, etc., on the ground that there is no causal link between the act of allowing the victim ○○○○○○○ and △△△△△ to pay advertising fees to Nonindicted 3-LLC, an advertising agent of the link.

2) Unreasonable sentencing

The sentence of the court below is too unreasonable.

D. Defendant 8, 9

(1) misunderstanding of facts

Defendant 8 and 9 are merely creating the instant program, and there is no fact that Defendant 4 and 3 conspired to commit the instant crime or participated in the said crime.

2) Unreasonable sentencing

Each sentence of the court below is too unreasonable because it is too unreasonable.

2. Judgment on the prosecutor's assertion of mistake of facts

A. Summary of this part of the facts charged

Defendant 5, 6, and 7: (a) in collusion with Defendant 1, and 4, from January 8, 2008 to April 21, 2008, Defendant 5, 6, and 7 (hereinafter referred to as “phone link”) advertised 13,277 times for “phone link” by competing companies, △△△△△△△, etc.; (b) in collusion with Defendant 1, 3, from March 18, 2008 to May 8, 2008, Defendant 5, as indicated in Table 1-2 of the Criminal List of △△△△△△△, a competitor company, etc., made the victim-based limited liability company and the △△△△△△△△△△△, a competitor company, to make an advertisement of “phone link” by entering false information or improper order into a computer or inputting information without authority, thereby obstructing the information processing and delivery of △△△△△△, etc., thereby allowing the victim-based company and the △△△△△△△, etc.

B. The judgment of the court below

In light of the records, the court below held that, while Defendant 5, 6, and 7 was running a fireworks delivery business through their respective Internet fireworks delivery business sites, most of the site related to the police officers around December 2007 was DNA (DOS) attack, and that there was an irregular character due to the excessive competition between NAV or non-indicted 3 within the Internet fireworks delivery business entity, and that there was an opinion to create a joint fireworks delivery site in order to avoid this, and that there was no evidence to prove that there was no other evidence to prove that there was 00 won from February 2, 2008 to 60, Defendant 7 did not have any other evidence to prove that there was 00 won from 00 to 07, Defendant 208, Defendant 2008, Defendant 207, Defendant 2008, Defendant 2008, and Defendant 7 did not have any other evidence to prove that there was no other evidence to prove that there was no money from 00 to 06,000 won.

C. Judgment of the court below

In light of the contents of the judgment of the court of first instance and the evidence duly examined in the court of first instance, if there are special circumstances to deem that the judgment of the court of first instance on the credibility of the statement made by a witness of the court of first instance was clearly erroneous, or if the court of first instance and the additional examination of evidence conducted by the court of first instance based on the results of the first instance and the results of the first instance examination up to the closing date of arguments in the appellate court, it is obviously unreasonable to maintain the judgment of the court of first instance on the credibility of the statement made by a witness of the court of first instance, the appellate court does not reverse without permission the judgment of the court of first instance solely on the ground that the judgment of the court of first instance on the credibility of the statement made by a witness of the court of first instance is different from the judgment of the appellate court. In particular, in the case of evidence supporting the facts charged, even though the court of first instance who directly observed the form and attitude of the witness in the process of examination of witness cannot recognize the credibility of the statement made by the witness, if the appellate court intends to determine the credibility of the statement after this, it shall be sufficient and obvious (see.

As shown in this part of the facts charged, there are statements in the witness non-indicted 6, non-indicted 7, and non-indicted 8's statement and the prosecutor's statement in the court of the court below 2, three times of interrogation of the defendant 1, the suspect interrogation of the defendant 3, the suspect interrogation of the defendant 5, and the statement of the non-indicted 8, and the non-indicted 6 prepared by the prosecutor. However, this is hard to believe in light of the witness's statements in the court of the court of the court below and the evidence Nos. 1-1 through 4 of the evidence Nos. 6, 7, and 8 of the witness's non-indicted 6, 7, and the non-indicted 5's statement in the court of the court of the court below, instead of each statement in the witness non-indicted 6, 3, and the non-indicted 5's court of the court of the court below, and there is no evidence to acknowledge this part of the facts charged in this case.

3. Judgment on the assertion of mistake of facts by Defendant 8 and 9

The court below duly admitted and examined the following circumstances, i.e., ① Nonindicted Company 1 requested the above program to be developed by Defendant 8 and 9. The function of the program was to communicate with Nonindicted Company 1’s server computer and HTP periodically with HTP without any additional order given that the user’s computer was operated during the operation of the program, and it appears that Nonindicted Company 8 and 9 started the program development on May 2007 and sent the program developed by Nonindicted Company 1 to Nonindicted Company 8, which was sufficiently known that the above program was operated by Nonindicted Company 1, which was operated by Nonindicted Company 1, and that the program was operated by Nonindicted Company 1, which was operated by Nonindicted Company 8, and that it would have been seen that the program was operated by Nonindicted Company 1, which was operated by Nonindicted Company 1, and that the program was operated by Nonindicted Company 4, which was operated by Nonindicted Company 8, which was operated by Nonindicted Company 1, which was sufficiently known that it was operated by Nonindicted Company 1, which was operated by Nonindicted Company 1, to develop the program.

4. Judgment on Defendant 4’s assertion of misapprehension of the legal principle

A. A point of spreading malicious programs;

A malicious program refers to a program that may damage, destroy, alter, forge, or interfere with the operation of an information and communications system, data, program, etc. [Article 48(2) of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection (hereinafter referred to as the “Act”).]

According to the records, the program of this case is automatically implemented without any additional order, when the program of this case is operated without the user's awareness while the user's computer is operated. The program of this case is intended to communicate with the server computer of non-indicted 1 on a regular basis with HTP, and it is intended to search a specific search language in the server computer according to the work order of the server computer, or send a false signal to the server system as if a specific link was charactered on the screen as a result of the search, etc. The program of this case is intended to interfere with the computer's performance and Internet speed by raising the user's CPU or network share in the process. In addition, the search service provided by NAV is planned to be operated by the user of the computer in fact by entering the search language in the search hold or by actually charged a specific link on the screen as a result of the search. However, the program of this case is intended to interfere with the original operation purpose of NA or the original purpose of the program of this case and its operation order of the server.

Therefore, this part of the defendant 4's assertion is without merit.

B. Infringement of information and communications networks

In full view of the evidence duly examined and adopted by the court below, in order for users to get access to the program of this case on the site "(Internet Address Address omitted)", the program of this case spreads the program of this case by inducing users to install the "Acive X" which was naturally hidden, and it can be acknowledged that the program of this case was publicly announced "Ict X" without properly explaining the function of the program of this case in the installation window where users ask whether the program of this case is installed or not. In light of the purpose and function of the program of this case, if users were to receive accurate information on the program of this case, it is deemed that the program of this case was not installed if users were to have been provided with accurate information. Thus, even if the computer of this case was installed under the Act after confirming the public notice of the installation window of this case, it cannot be deemed to have consented to the installation of the program of this case, and as seen above, the computer of this case was operated under the automatic order of users without access authority of the computer of this case or the computer of this case.

(c) Degree of interference with business such as computer, etc.

In order to establish the crime of interference with business by interference with computers, etc. under Article 314(2) of the Criminal Act, a harmful act requires that the data processing device actually interferes with its intended purpose, such as failure to function in line with its intended purpose, or performance of other functions. However, insofar as the risk of interference with business has occurred as a result of the interference with business, which may result in the interference with business, the above crime is established even if the interference with business actually did not occur. Therefore, if false character information transmitted to the statistics collection system server of the portal site operation company was actually reflected in the statistics in the search ranking decision process, and the false character information transmitted as above was actually reflected in the statistics in the search ranking decision process, thereby the crime of interference with business by computer, etc. is established (see Supreme Court Decision 2008Do11978, Apr. 9, 2009).

Comprehensively taking account of the evidence duly examined and adopted by the court below, Defendant 4 conspired with Defendant 3 on the method of using the instant program, etc., thereby creating and raising the order of search language related to an advertiser, automatic completion, creation and priority, and Defendant 1 in collusion with Defendant 1 on the list of crimes (except 20, 21, 23, 24, 25, 26) of the court below’s decision by using the instant program, such as ○○○○○ and △△△△△△△△△△△△△△△△’s act of entering the search language in the NV search book, or of entering the aforementioned sponsor link into the original purpose or the false information system’s operation or the false information system’s operation or the false information’s operation of the server.

In addition, inasmuch as the above false signals sent by Defendant 4, etc. were processed by recognizing that the search language was actually entered in the Niber’s relevant system server or that the link was charactered, it is deemed that the data processing disorder was practically caused by failure to function in line with the intended use or by performing functions different from the intended use, and thereby, such false signals interfered with the duties of Niber’s search control services, etc. or the advertising duties of Niber’s sponsor link sponsorss.

Therefore, Defendant 4’s assertion on this part is without merit.

(d) The point of hindering information and communications networks;

Article 48(3) of the due diligence Act provides, “No person shall interfere with an information and communications network by sending a large amount of signals or data for the purpose of hindering the stable operation of the information and communications network or by allowing the processing of unlawful orders.” Here, the term “information and communications network” refers to an information and communications system under subparagraph 2 of Article 2 of the Framework Act on Telecommunications or collecting, processing, storing, searching, transmitting, or receiving information by utilizing telecommunications facilities and equipment under subparagraph 2 of Article 2 of the Framework Act on Telecommunications or telecommunications facilities and equipment and computers and computer technology (Article 2 subparag. 1 of the due diligence Act), and the term “information and communications network interference” refers to an information and communications system under Article 2 subparag. 1 of the Act that fails to function in accordance with its original purpose in collecting, processing, storing, searching, transmitting, or receiving information due to a large amount of signals or unlawful

As seen above, Defendant 4, in collusion with Defendant 3, was found to have engaged in the creation and priority of the search language related to the advertiser by using the instant program, etc. by using the program, etc. of this case, and the creation and priority of the search language related to the advertiser, and the aforementioned work is performed by the computer users who installed the instant program, etc., even though they did not actually enter the search language in the NAV search hold, as if they entered the search language, sending a false signal to the NNA’s relevant system server. The act of sending such false signals constitutes an act of inputtinging the “unlawful order”, which is either different from the original purpose of operation of the system operated by NER or is not originally anticipated.

In addition, inasmuch as the illegal order sent by Defendant 4 et al. recognized that the search language was actually input in the Niber’s relevant system server, and the result that Defendant 4 et al. created the automatic completion and related search language or raised the order thereof according to the intention of Defendant 4 et al., it is deemed that the failure was practically caused in collecting, processing, storing, and searching information in the Niber’s information and communications network, and Defendant 4 et al. sufficiently recognized that there was a purpose to interfere with the stable operation of the Niber’s information and communications network at the time of the above work. Therefore, this part of Defendant 4’s assertion is groundless

E. Points of fraud by using computers, etc.

According to the evidence duly adopted and examined by the court below, it is sufficiently recognized that Defendant 4, in collusion with Defendant 1, had the non-indicted 3 limited liability company, an advertising agent of NVV, pay advertising fees, such as the list 1-1 (except Nos. 20, 21, 23, 24, 25, and 26 among them) of the crime sight table in the judgment of the court below by using the program of this case.

Meanwhile, the establishment of the crime of fraud by using computers, etc. cannot be denied solely on the above circumstances, even if Nonindicted Company 3 did not claim the fee for the character by analyzing the character caused by the illegal system, a specific type of repeated pattern pattern pattern, among the character created solely with a malicious intent to impose a charge on an advertiser, without any possibility that actual site visits or transactions may be conducted in real time by building and operating the character prevention system at Nonindicted Company 3’s limited liability company.

Therefore, Defendant 4’s assertion on this part is without merit.

5. Determination of the grounds for unfair sentencing by the prosecutor and the defendant 1, 2, 4, 8, and 9

A. Defendant 1

Defendant 1’s act of committing each of the instant offenses ought to be strictly punished in light of the following: (a) distortion of information posted on the Internet portal site; (b) undermine the trust of users on the search result; and (c) undermine the order of the Internet advertising market; and (d) the nature of the relevant crime is very bad; and (b) the amount of damage caused by the illegal character of a sphone link

However, in light of various circumstances such as Defendant 1’s age, character and conduct, intelligence and environment, and the result of the instant crime, etc., it is determined that the sentence of the lower court is appropriate as a result, taking into account the following factors: (a) Defendant 1 also was subject to illegal character and DNA attack from a competitor, etc., due to inherent issues in the Internet advertising method (CPC method) adopted by the portal site, such as excessive competition within the Internet advertising market and the Internet advertising method; (b) Defendant 1 was the initial offender; and (c) Defendant 1 appears to have been bound for a considerable period of time, and thus, Defendant 1’s depth and reflects his criminal conduct.

Therefore, there is no reason for the prosecutor's and Defendant 1's above assertion of unfair sentencing.

B. Defendant 2

The crime of this case committed by Defendant 2 is very bad to the nature of the crime by spreading malicious programs on an unspecified number of computers and by producing automatic completion, etc. using such programs, thereby distorted information posted on the Internet portal site, thereby impairing users’ trust in the search result, and impairing the order of the Internet advertising market.

However, in light of the fact that Defendant 2 had no record of criminal disposition exceeding a fine, and the fact that Defendant 2 is detained for a considerable period and seems to have seriously reflected on his criminal act, and other various circumstances that are conditions for sentencing, such as the age, character and conduct, intelligence and environment of Defendant 2, the result of the instant crime, the circumstances after the crime, etc., it is determined that the lower court’s punishment is appropriate.

Therefore, there is no reason to believe the above unfair sentencing by the prosecutor and the defendant 2.

C. Defendant 3

Defendant 3’s crime of this case spreads a malicious program on an unspecified number of computers, distorted information posted on the Internet portal site by using it, and thus, it is necessary to strictly punish Defendant 3 in light of the following: (a) the nature of the search result is very bad; and (b) the degree of damage caused by the scambling and scambling, by impairing the order in the Internet advertising market; and (c) Defendant 3 is a primary offender; (d) Defendant 3 is detained for a considerable period; and (e) is deemed to reflect Defendant 3’s depth of the crime; and (e) taking full account of all circumstances that are the conditions for sentencing as indicated in the record, such as Defendant 3’s age, character and conduct, intelligence and environment, motive, means and consequence of the instant crime, and circumstances after the crime, the prosecutor’s assertion is without merit.

D. Defendant 4

Defendant 4’s crime of this case spreads a malicious program to an unspecified number of unspecified computers, distorted information posted on the Internet portal site, thereby undermining the user’s trust in the search result, undermining the order of the Internet advertising market, etc., the nature of the crime is very bad, and the amount of damage caused by the spon link’s illegal character is not large, and upon the commencement of investigation in relation to the crime of this case, it is necessary to punish Defendant 3 with strict punishment in light of the following: (a) upon the commencement of investigation, Defendant 4 instructed the employees to destroy evidence; and (b) requested Defendant 3 to leave all crimes

However, in light of the fact that Defendant 4 has no record of criminal disposition exceeding a fine, and the fact that Defendant 4 is detained for a considerable period and seems to have seriously reflected on his criminal act, and other various circumstances that are conditions for sentencing, such as the age, character and conduct, intelligence and environment of Defendant 4, the result of the instant crime, the circumstances after the crime, etc., it is determined that the lower court’s punishment is appropriate.

Therefore, there is no reason for the prosecutor's and Defendant 4's allegation of unfair sentencing.

E. Defendant 8, 9

Defendant 8 and 9 may sufficiently recognize that the instant program would be used for committing crimes by spreading it to many unspecified computers, but they developed the said program and deliver it to Nonindicted Company 1. However, in light of the fact that the program was actually distributed to unspecified computers and was actually used for committing crimes, the nature of the crime is not somewhat weak.

However, in light of the fact that Defendant 8 and Defendant 9 are primary offenders, there is no benefit from the other than receiving the program development cost of this case from Nonindicted Company 1, and other various circumstances such as Defendant 8 and 9’s age, character and conduct, intelligence and environment, the result of the instant crime, the circumstances after the crime, etc., the lower court’s punishment is deemed appropriate.

Therefore, the prosecutor's and the defendant 8 and 9's above assertion of unfair sentencing are without merit.

6. Conclusion

Therefore, since the appeal filed by the prosecutor and the defendant 1, 2, 4, 8, and 9 is without merit, it is all dismissed pursuant to Article 364 (4) of the Criminal Procedure Act, and it is so decided as per Disposition (However, the "defendant 5, 6, 10, and 7" of the "Nonindicted 9 Co., Ltd.," of the 10th and 6th of the judgment of the court below, and the "Defendant 10, and 7" of the 1-1 and 1-2 of the crime sight table is obvious to be a clerical error, and all of them shall be deleted ex officio pursuant to Article 25 of the Regulations on Criminal Procedure.

Judges Lee Chang-tae (Presiding Judge)