[1] The method of determining whether a user, such as the above transmission number, is a “person who transmitted information” or “person who made another person transmit information” under Article 67(1)1 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., where the recipient’s phone calls indicate the transmission number, etc. of advertising information for profit-making purposes transmitted without prior consent

[2] The method of determining whether a party to an answer number indicated in the information constitutes a person subject to an administrative fine under Article 67(1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., where any advertising information for profit has been transmitted without prior consent from the recipient’s telephone

[1] Article 50(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 7917 of Mar. 24, 2006) provides that a person who intends to transmit advertising information for profit to a recipient’s telephone or facsimile shall obtain prior consent from the recipient. Article 67(1)1 provides that a person who transmits advertising information for profit in violation of the above provision and a person who causes another person to transmit such information shall be punished by a fine for negligence not exceeding 30 million won. In cases where advertising information for profit is transmitted by the recipient’s telephone with a specific serial number indicated on the recipient’s phone number, regardless of the transmission number indicated on the above information, the recipient’s phone number can be easily manipulated when transmitting the information through the Internet or mobile phone. In light of the fact that, regardless of the transmission number indicated on the above information, a disposition of a fine for negligence must be taken after investigating “the sender of the information,” and the person who actually used the above information can directly send the information without directly using the information.

[2] The identity of a subscriber to a sending number (referring to a sending number used for the actual transmission of information, not the sending number indicated on the information) and the response number can be the basis for determining the “person transmitting the information” or “person who made the transmission of the information,” but in particular, it cannot be readily concluded that the fact that the person is a subscriber to the response number is “person who made the transmission of the information,” in addition to the identity of the subscriber, the disposition agency should impose an administrative fine on the “person who made the transmission of the information,” as a “person who made the transmission of the information,” following a basic investigation on the process of opening and providing the response number in addition to the identity of the subscriber, the address and the holder of the response number, the method of paying response number, and the relationship with the nominal holder of the transmission number, etc. In addition, if the person subject to the disposition of imposition in the trial of an administrative fine is dissatisfied with this, the court should comprehensively examine the above circumstances and detect ex officio whether the nominal holder of

[1] Articles 50(2) and 67(1)1 (see current Article 76(1)7) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection (Amended by Act No. 7917, Mar. 24, 2006) / [2] Articles 50(2) and 67(1)1 (see current Article 76(1)7) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection (Amended by Act No. 7917, Mar. 24, 2006)

Re-appellant

Suwon District Court Order 2008Ra165, 171, 172, 173, 174 dated April 21, 2009

The order of the court below shall be reversed and the case shall be remanded to Suwon District Court Panel Division.

The court below acknowledged the fact that the advertising information for profit was transmitted to the receiver's telephone without the prior consent of the receiver to the telephone number admitted in the name of the re-appellant without the prior consent of the receiver, and rejected the claim on the ground that there is no evidence to acknowledge the fact that the other person used the name of the re-appellant and used the above transmission act.

Article 50(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 7917, Mar. 24, 2006) provides that any person who intends to transmit advertising information for profit to a recipient’s telephone or facsimile shall obtain prior consent from the relevant recipient. Article 67(1)1 provides that any person who transmits advertising information for profit in violation of the above provision and any person who causes another person to transmit such information shall be punished by a fine for negligence not exceeding 30 million won. In cases where advertising information for profit is transmitted by the recipient’s telephone with a specific serial number indicated on the recipient’s phone number, regardless of the transmission number indicated on the above information, if the transmitted information is easily fabricated, the relevant disposition authority should impose a disposition on the recipient of the administrative fine upon the recipient’s identity who actually used the above information, and on the grounds that the recipient’s identity address and response number indicated on the recipient’s identity cannot be determined as a “person who actually sent the information,” and on the other hand, it means the recipient’s identity number and response number.

According to the records, the advertisement text messages indicated by 02-(hereinafter phone number 1, 2, 3, 4, 5 omitted) are sent to the receiver’s mobile phone number, and all of the subscribers’ names are re-appellants. However, in light of the fact that it is difficult to transmit text messages easily unless they join a telephone machine with the function of transmitting text messages and text messages service, such as the above telephone number, and that text messages can be operated differently from the actual ones when they are sent to the Internet or mobile phone, it is highly probable that the above phone number is not the phone number actually used in the transmission of the above text messages, but the response number notified to the addressee.

In light of the circumstances, the lower court should have further examined whether the call number used to transmit the text message is the same as the call number in question, and if different, the nominal owner is the same as that of the above answer number, and whether the re-appellant is the person who sent the text message. If the re-appellant is not the person who sent the text message, the lower court should have further examined whether the re-appellant is the person who sent the text message, by examining the circumstances such as the situation

Nevertheless, the court below's rejection of the Re-Appellant's assertion of the identity theft on the ground that the Re-Appellant's sending of text messages is the nominal holder of the reply number is insufficient, and there is an error of misunderstanding of facts, incomplete hearing, and misunderstanding of legal principles as to the ex officio detection

Therefore, the order of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)