Defendant 1 and eight others

Defendants

limited to the extent of transfer

Law Firm Pacific, Attorneys Song Jae-soo et al.

Suwon District Court Decision 2003Kadan1012, 4700 decided July 15, 2004

Of the judgment below, the part against the defendant 4, 6, and 8 shall be reversed.

The pronouncement of each sentence against the defendant 4, 6, and 8 shall be suspended.

All appeals filed by Defendant 1, Defendant 2, case, patent company, patent company for reorganization, global tax communication for reorganization company, and telecom corporation are dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misapprehension of legal principles

(1) The assertion that real-time dialogue-based pay telephone information services are “value-added telecommunications services” (Defendant 1 to 7)

Despite the fact that real-time telephone information service using 060-time telecommunications line corresponds to value-added telecommunications service under the Telecommunications Business Act (hereinafter “real-time telephone information service”), the lower court, on the premise that real-time telephone information service constitutes a key telecommunications service, completed a license as a key telecommunications business operator or registration as a specific telecommunications business operator in order to become a business operator who provides the above service under the Telecommunications Business Act under the premise that the real-time telephone information service constitutes a key telecommunications service. The lower court determined that the said Defendants violated the Telecommunications Business Act by failing to obtain a license as a key telecommunications business operator or complete registration as a specific telecommunications business operator

(2) Claim for entrustment of the provision of information among common telecommunications services (Defendant 8,9)

Defendant 1, the Telecom Co., Ltd. (hereinafter “one telecom”) leased 060 lines so that the above telecom may operate the real-time telephone information service business, which is a key telecommunications service, even though the provision of information was legally entrusted to an individual business operator, even though the real-time telephone information service, which is a key telecommunications service.

(3) Claim for quasi-investment advisory business in securities consulting services (Defendant 8,9)

One of the information providers (Nos. 1 through 4) who leased 060 lines from the telecom was merely informing about the securities information held by the information provider when many and unspecified persons access to telephone, but the court below, on the premise that the securities consulting service constitutes an investment advisory business, assisted the violation of the Securities and Exchange Act by leasing 060 lines to the business operators who did not complete the registration of investment advisory business.

(4) As to the failure of aiding and abetting (Defendants)

㈎ 피고인 주식회사 케이티(이하 ‘케이티’라고 한다), 주식회사 데이콤(이하 ‘데이콤’이라고 한다), 정리회사 주식회사 온세통신(이하 ‘온세통신’이라고 한다), 하나로텔레콤(위 피고인들을 지칭하여 이하 ‘피고인 회사들’이라고 한다)이 정보제공사업자들에게 060회선을 임대해 준 것을 전기통신사업법위반 내지 증권거래법위반에 대한 방조행위라고 평가할 수 없다.

㈏ 피고인 1, 2, 4, 6, 8(위 피고인들을 지칭하여 이하 ‘ 피고인 1 등’이라고 한다)은 정보통신부의 지침 및 약관승인에 따라 피고인 회사들의 실시간 전화정보서비스 관련 업무를 처리해 왔을 뿐 정보제공사업자의 운세상담 내지 증권상담이 위법하다는 것을 전혀 인식하지 못하였고, 피고인 1, 2의 경우 회선임대 후 사업자들의 영업에 대한 구체적인 관리·감독의무를 부담하지 않고 사업자들의 위법행위를 규제할 만한 어떠한 권한도 없어 일부 정보제공사업자{원심 범죄일람표(2) 순번 제33번 이하}들이 임의로 서비스내용을 운세상담 내지 증권상담에서 남녀간 실시간대화로 변경한 것을 알 수 없었으므로, 피고인 1 등에게 방조의 고의가 있다고 할 수 없다.

㈐ 한편, 케이티는 실시간 전화정보서비스의 시범사업기간이 종료함에 따라 2001. 5. 28.경부터 본사에서 지사로 계약체결업무를 이관하였고 그 이후 피고인 1, 2는 전화정보서비스 관련 업무를 담당하지 않았으므로 업무이관 시점 이후의 방조책임까지 부담한다고 볼 수 없다.

(5) Expected possibility assertion (Defendant 4)

Defendant 4 was issued on June 1, 2001 by the director of the Additional Project Team of the Telecom, and was in charge of affairs related to telephone information service. In the case of the Telecom, the implementation of real-time telephone information service was already decided at the time of February 15, 2000, and the project was actively conducted without any problems as to legality, and thus, the above Defendant, who is only a working person, could not recommend the suspension of business or refuse to conclude a new contract, and thus, Defendant 4 cannot be acknowledged as the possibility of expectation of lawful act.

(6) Nevertheless, as the lower court found the Defendants guilty of all the charges of this case, it erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Defendant 4, 5

Considering the fact that the compact has contributed to promoting the convenience of the people and improving the public welfare, the investigation of this case was initiated by the information service provider by sending spams to obtain large profits, and that there was no company that has transacted with the compact among the above service provider, Defendant 4 was the primary offender, and that there was no personal gain due to the crime of this case, etc., the punishment of KRW 3 million and KRW 7 million imposed by the court below on Defendant 4 and the Telecom is too unreasonable.

2. Basic facts

The record reveals the following facts:

(a) Types of telephone information services and methods for providing such services;

(1) In the past, telephone information services are classified into voice information search services and voice box services by entering and storing voice information, etc., to be provided by telephone information providers, into a telephone information device (ARS) by a telephone service provider (Audio Respon) and by a person who wants to obtain such information through a telephone.

(2) If a business operator who rents a line from a telecommunications service provider installs a telephone information device and enters various information, the user unilaterally provides information to the business operator and simply acquires information by telephone (e.g., sports competition results guidance, successful applicants guidance, security information service, living information service, etc.). The voice communications service is a non-time indirect communications method by which the user stores the voice communications box box operated by the telecommunications service provider and the user simply listens to the stored voice communications room (e.g., contact communications service, telephone book service, advertising box service, advertisement box service, and mobile communications network).

(3) However, the real-time telephone information service was newly emerging as the existing telephone information service is in progress due to the activation of the PC (PC) communication and the Internet, which refers to the provision of real-time calls and information to the counselor and the user directly via the telephone exchange line (e.g., 1:1 road, securities consultation, legal consultation, etc.).

(4) On the other hand, the method of providing telephone information services is divided into three: ① hosting services is to provide a key telecommunications business operator with various equipment and places, such as systems necessary for providing a service, and to provide a service through an exclusive line line or equipment installed therein by a key telecommunications business operator, such as rinks, etc. ② The method of providing a key telecommunications business operator only at a place where an exclusive line is installed, and a key telecommunications business operator provides a service by constituting various equipment necessary for providing a service. ③ External connection services are to provide a service by setting up a place where a key telecommunications business operator leases a exclusive line only from a key telecommunications business operator and provides the service by setting up various systems, equipment, and circuits.

(5) The type of telephone information service, i.e., voice information search, voice box services, and real-time services, including subscription fees, fees, etc. that a key telecommunications business operator rents to a provider of information and receives in return for the lease of a telephone information exchange line, are the same, but there are differences in detail depending on the method of hosting, hosting, and external connection, which is the method of providing the service.

(6) The provision of telephone information services shall be carried out in a way that the service user becomes an exclusive telephone caller (e.g., 060 exchangeers, etc.) installed in each case’s branch (on the face of 060 exchange units, etc.) via an exchange machine (in the case of a radio telephone, referring to an exchange machine for a local telephone station) and is linked to the E.S. system operated by the provider of information through an intelligent network exchange. In the case of real-time telephone information services, the professional counselor employed by the provider of information shall directly communicate with the service user via a telephone line connected to E.S. system by the provider of information.

(7) The telecom, Onnuricom, one of the telecom, was unable to be equipped with a dedicated line and line network nationwide, and was leased and used for existing lines installed.

(b) Progress of real-time telephone information service projects;

(1) On May 199, Defendant 2 drafted a “plan for revitalization of telephone information service business” while working at the Korea Communications Corporation (KTA) as a product planning group affiliated with the marketing headquarters. On August 11, 1999, Defendant 2 discussed “measures for activation of service 700” along with Nonindicted 1 and two personal business operators, who are officials in charge of additional communications at the Ministry of Information and Communications Department.

(2) After that, around December 199, at the KT, a business operator was recruited in order to render real-time telephone information services in English language, and approximately 10 companies submitted a business plan. After examining the business plan at the KT head office (at the time, Nonindicted 1 officials in the Ministry of Information and Communications was selected as examiners), five companies were selected among them. However, only approximately 2 months were suspended due to the service users.

(3) In order to further activate telephone information service as a working-level employee on June 200, Defendant 2 changed the former terms and conditions of telephone information service use to “term terms and conditions of telephone information exchange line service use”, and obtained approval from Defendant 1, and obtained approval from the Information and Communications Ministry by reporting it to the Information and Communications Ministry. From July 5, 2000 to the above terms and conditions, K used real-time telephone information service by leasing 060 lines to the information provider in accordance with the above terms and conditions.

However, when there was a complaint from the information provider that the lease and opening of 060 lines are diversified, the case transferred its business so that it can enter into a contract for real-time telephone information service at each branch office (business handling station) with ten branches nationwide from May 2001 (the implementation plan of the business transfer officer was drafted by Defendant 2 as the working-level officer and obtained approval from Defendant 1).

(4) Meanwhile, around February 200, the Telecom promoted a plan to activate telephone information service in the case where the competitor is a competitor, and changed the terms and conditions of telephone information service by adding the contents of real-time telephone information service around May 200 to the contents of telephone information service around the end of May, 200. Since September 200, the Telecom implemented real-time telephone information service, such as telephone counseling service.

Defendant 4 worked as the director of the supplementary project team from June 2001 and actually took exclusive charge of the selection of business operators, conclusion of contracts, management, etc. in relation to the real-time telephone information service.

(5) On April 1996, the On-the-counter telecommunications service began to provide real-time telephone information services in parallel with voice search services from January 2001, when the On-the-counter telecommunications service was operated by the phone information exchange line after obtaining a license for a key telecommunications business operator and the case and the telecom, etc. using the phone information exchange line.

Defendant 6 also prepared telephone information service business while taking charge of additional service at the special project team, and was in charge of telephone information service from June 2001.

(6) One of the telecom obtained a license as a key telecommunications business operator around September 1997 and conducted super-high speed Internet service and city telephone service, and other key telecommunications business operators reported the change of service to the Ministry of Information and Communication around September 1999, and provided telephone information service on a model from March 200, and provided only voice information search service.

From January 2001, Defendant 8 was in charge of telephone information service business by attracting information service providers as one team leader of the business office from the business office to enter into a contract.

(c) Classification of telecommunications business and category of telecommunications services;

(1) Telecommunications business is classified into a key communications business, a special category telecommunications business, and a value-added telecommunications business. The key communications business is a business that installs a telecommunications line equipment and provides telecommunications services including telegraph and telephone services (hereinafter “key telecommunications services”) with the type and contents of telecommunications services as prescribed by the Ordinance of the Ministry of Information and Communication, taking into account impacts on the public interest and national industries, necessity for stable provision of services, etc. The key communications business is a business that provides key communications services using telecommunications line equipment, etc. of a key communications business operator, and the value-added telecommunications business is a business that provides telecommunications services other than the key telecommunications services (hereinafter “ Value-added telecommunications services”) by leasing telecommunications line equipment from

(2) However, since the voice services among the telephone information services are mediating other's communications through indirect communications services, they could operate a business after reporting as value-added telecommunications business operators, while the voice information search services were classified as a minor business with simple search function without mediating other's communications, and could operate a business without reporting as value-added telecommunications business operators (see Article 21 of the Telecommunications Business Act, Article 9 (2), 1, and 2 of the Enforcement Decree of the Telecommunications Business Act).

3. Judgment on misconception of facts or misapprehension of legal principles

A. Whether real-time telephone information service constitutes “Additional Communications Services”

(1) The Defendants asserts that real-time telephone information services constitute value-added telecommunications services on the following grounds:

㈎ 실시간 전화정보서비스는 서비스이용자의 전화를 정보제공사업자가 운영하는 에이알에스 시스템에 연결시켜주는 기간통신역무(전화역무) 및 사업자가 고용한 상담원들이 에이알에스 시스템을 통해 이용자들에게 정보를 제공해 주는 정보제공서비스가 결합되어 음성 등을 송수신하는 것이므로 전기통신사업법 시행규칙 제3조 제1호 단서의 “부가가치(정보제공을 통한 정보이용료)를 높이기 위하여 가공, 축적하는 경우”에 해당된다.

㈏ 시내, 시외전화 등 통화권역을 구분함이 없이 전국을 하나의 통화권으로 묶어 서비스를 제공하는 것이므로 전기통신사업법 시행규칙 제3조 제1호 에서 규정하고 있는 전화역무 중 어느 것에 해당한다고 단정할 수 없다.

㈐ 실시간 전화정보서비스를 전화역무로 본다면 이용자들은 피고인 회사들의 전화역무와 정보제공사업자의 전화역무를 동시에 제공받아 기간통신역무인 전화역무를 이중으로 제공받게 되는 모순이 발생한다. 정보제공사업자는 착신 전화를 에이알에스 시스템을 통하여 상담원에게 연결하여 피고인 회사들의 전화역무를 이용하는 사람들에게 실시간으로 전화정보를 제공하여 주는 것에 불과하다.

㈑ 불특정 다수인 사이의 양방향 음성 통신을 매개하는 것이 아니라 정보제공사업자가 고용한 특정 상담원을 통하여 일방향성 정보를 제공하는 것이다. 대법원은 2003도2274호 , 2004도5314호 사건에서 실시간 전화정보서비스가 기간통신역무에 해당한다고 판시한바 있으나, 이는 남녀간 실시간대화, 이른바 폰팅에 대한 것으로서 특정 상담원을 고용하고 있지 않고 일방향성 정보 제공이라는 요소도 없으므로 이 사건에서와 같은 전문상담원 고용을 통한 운세상담 등과는 사실관계를 달리하는 것이다.

㈒ 선불전화카드 이용자에게 전화역무를 제공해 주는 사업자의 경우 별정통신사업자로서 피고인 회사들의 회선설비를 사용하기는 하나 자체적으로 전화교환기를 구비하여 전화역무를 직접 제공해 주고 있으며 전화통화료를 전액 회수하는데 반하여, 이 사건 정보제공사업자는 상담원을 고용한 후 착신 전화를 에이알에스 시스템을 통해 상담원에게 연결시켜 줄 뿐 전화교환기를 갖고 있지도 않고 전화통화료는 모두 피고인 회사들의 수입이 되며 단지 정보이용료 중 일정비율 상당액을 공제한 나머지만을 정보제공대가로 취득하고 있다.

㈓ 통신역무의 주무부처인 정보통신부는 실시간 전화정보서비스가 부가통신역무에 해당한다고 해석하고 있으며(당심에서의 2005. 3. 11.자 및 10. 10.자 각 사실조회회신 참조), 온세통신에 대하여 실시간 전화정보서비스 제공과 관련하여 전화부가서비스 역무로 사업권을 부여하였고, 정보제공사업자로부터 부가통신역무로 신고를 받거나 정보제공사업자를 별정통신사업자로 등록하게 한바 없다.

In addition, with respect to the multi-company corporation, which had been proceeding 060 services after registration as a special category telecommunications business operator on May 31, 2005, the Seoul metropolitan application having jurisdiction over the registration of a special category telecommunications business operator, revoked the registration of a multi-day special category telecommunications business operator on the ground that “actual time telephone information service is a minor supplementary telecommunications service, and it does not constitute a special category telecommunications business for one year.”

㈔ 이 사건의 정범격인 정보제공사업자들에 대하여 실시간 전화정보서비스가 부가통신역무에 해당한다는 전제에서 공소가 제기되어(공판기록 제275면 이하 참조), 이 사건 정범인 공소외 2{원심 범죄일람표(2) 제33번}가 부가통신사업자 신고를 하지 않았다는 공소사실에 대하여 유죄판결을 받았다( 수원지방법원 2003고단185 판결 참조).

㈕ 이른바 지능망서비스에 해당하는 114, 080서비스의 경우 이용자가 해당번호로 전화를 걸면 전화국 교환기 등을 통해 서비스제공사업자들이 고용한 상담원과 연결되며 상담원이 실시간으로 이용자와 통화하여 전화번호 등 각종 정보를 제공해 주고 있어 060서비스와 동일한 방식으로 서비스제공이 이루어지고 있음에도 불구하고 해당 사업자들이 별정통신사업자로 등록하지 않은 채 114, 080서비스를 제공하고 있다.

(2) However, in full view of all the following circumstances recognized in the record, real-time telephone information service should be deemed as a common telecommunications service.

㈎ 전화정보서비스 중 음성정보검색서비스는 일정한 조건 및 형식에 맞추어 에이알에스 시스템에 녹음되어 있는 음성을 단순히 수신하는 것에 지나지 않고, 음성사서함서비스는 이용자가 상대방에게 음성을 직접 보낼 수 없고 녹음된 형태로 보내게 되는바, 이는 모두 전기통신설비를 이용하여 음성등을 송신하거나 수신하는 것이기는 하나 음성을 가공 또는 축적하는 것이라고 볼 수 있다.

On the contrary, real-time services are capable of transmitting and receiving voice directly by users and counselors, and cannot be deemed to have processed or accumulated voice itself, such as recording a voice. In that they directly transmit or receive voice by means of telecommunications equipment, there is no fundamental difference from telephone services, which is a key telecommunications service, and in that they directly transmit or receive voice by means of telecommunications equipment, it is possible to provide useful information or public interest counseling, while in the event of erroneous operation, the risk of transfer due to obscene and hidden services would have a great impact on the public interest and national industries, such as cost-bearing burden on service users, and the need to provide services in a stable manner.

㈏ 음성사서함서비스의 경우 부가통신사업자로서 신고해야만 사업을 할 수 있다는 자격제한을 두면서 그보다 규제의 필요성이 더 큰 실시간서비스를 단순 음성정보검색서비스와 동일하게 아무런 자격도 필요하지 않다고 해석하는 것은 부당하다.

㈐ 실시간 전화정보서비스는 서비스이용자와 정보제공사업자가 동일한 통화권안에 있는 경우에도 해당지역 전화국 교환기를 거쳐 시외 중계교환기(PSTN)에 상응하는 해당 업무취급국의 060교환기 및 지능망교환기를 모두 거쳐 서비스제공이 이루어지는 점에서 통상의 시내전화역무와 다소 차이가 있기는 하나, 전기통신사업법 시행규칙 제3조 에서 규정하고 있는 시내전화 및 시외전화 역무는 동일한 통화권안에서 이루어지는 여부에 따른 편의적인 구분에 불과할 뿐 전화역무에 해당하는지 여부를 결정짓는 본질적인 요소라고 볼 수 없다.

㈑ 피고인 회사들은 정보제공사업자에게 전기통신회선설비를 임대하는 역무를 제공하는 것이고(케이티를 제외한 나머지 피고인 회사들은 실시간 전화정보서비스 제공을 위하여 케이티로부터 일부 선로망 및 교환기를 임차한 후 정보제공사업자에게 이를 다시 임대하고 있는데, 전기통신사업법 시행규칙 제3조 제3호 에 의하면 임차한 국내 전기통신회선설비를 재임대하는 경우는 기간통신역무로서의 전기통신회선설비임대역무에서 제외되므로 이 부분에 한하여는 케이티만이 기간통신역무를 제공하는 것이다), 정보제공사업자는 피고인 회사들로부터 서비스이용자의 전화접속시 지역교환기 등을 거쳐 에이알에스 시스템에 연결되는 데까지 필요한 전용회선을 임차하고 피고인 회사들은 전용회선을 운용하는데 그치므로 서비스이용자의 입장에서 보더라도 실시간 전화정보서비스라는 하나의 통신역무만이 제공되는 것이다.

㈒ 전화역무는 전기통신설비를 이용하여 음성등을 송신하거나 수신하게 하는 전기통신역무를 의미할 뿐 대화자 중 일방이 특정되어 있다거나 일방적으로 음성이 보내진다고 하여 이러한 사정만으로 전화역무가 아니라고 할 수는 없다. 특히 전기통신사업법 제4조 제3항 제2호 에서는 구내에 전기통신설비를 설치하거나 이를 이용하여 그 구내에서 전기통신역무를 제공하는 사업의 경우 그 통신역무의 이용자들이 특정되어 있다고 할 것인데도 별정통신사업에 해당하는 것으로 구분하여 별도의 등록을 요구하고 있다.

㈓ 선불카드 사업자가 통화료를 직접 회수하게 되는 것은 카드판매방식으로 통화료 상당액을 사전에 징수해 두는 데서 비롯된 것이므로 실시간 전화정보서비스와 단순 비교할 수 없다. 한편, 정보제공사업자는 피고인 회사들에게 회선임차에 대한 대가로 가입비 및 이용료 등을 지급하고 있고 정보이용료 중 약 10퍼센트 상당액을 정보이용료 수납대행에 대한 수수료 명목으로 지급하고 있다.

㈔ 그밖에 정보통신부, 검찰 및 법원에서 실시간 전화정보서비스가 부가통신역무에 해당한다고 해석한바 있다거나, 114, 080서비스 사업자들이 별정통신사업자등록을 마치지 않은 채 사업을 하고 있다는 사정은 실시간 전화정보서비스가 기간통신역무에 해당하지 아니한다는 점에 대한 결정적 근거가 될 수는 없다{오히려, 실시간 전화정보서비스가 도입되어 서비스제공이 이루어질 당시 정보통신부에서는 그 역무의 성격이 기본적으로 기간통신역무에 해당함을 명확히 한 바 있다(수사기록 제285면 이하, 제1582면 이하)}.

(b) Whether key communications services constitute entrustment of provision of information;

(1) As the provisions of Article 12 of the Telecommunications Business Act was amended and deleted by Act No. 5986 on May 24, 1999, Article 12 of the Telecommunications Business Act provides that a key telecommunications business operator may entrust part of his/her business to another person even without a separate report, and Articles 2 (Definition of Contracts), 12 (Calculation of Information Fees), 13 (Claim and Receipt of Information Fees), and 14 (Payment of Information Fees), etc. of the Standard Contracts for Telephone Information Service (Reference Information Service), the subject of the provision of telephone information service shall be one of the subjects of the provision of telephone information service, and the supplier of information shall be the entrusted business operator shall be the entrusted business operator with the provision of various information necessary for disclosure of the above service and shall be the entrusted business operator receiving fees.

(2) On the basis of the following circumstances, i.e., the provision of information: (a) if the users of the information were to connect the information service to the local telephone exchange and exclusive telephone exchange system; and (b) if the information provider simply entrusted the provision of information, it is not necessary to pay monthly service charges in return for the use of the exclusive telephone network (if the provision of information is simply entrusted, it is not necessary for the provision of information). On the other hand, there is no room to regard the provision of telecommunications services from the telephone connection to the information service users as one of the total revenue of the information service users to the information provision system. However, it is difficult for the information provider to view that the company’s exclusive provision of information, including the information and communication network services, should be entrusted to the information provider, and the company’s exclusive provision of information and communication services, including the information and communication network service provider, should be decided on the user’s own by using the information and communication network as one of the exclusive provision of information and communication services, and the company’s exclusive provision of information and telecommunications services, including the information service provider’s exclusive provision of information services.

(c) Whether securities counseling services are quasi-investment advisory business;

(1) Defendant 8, one of the real-time telephone information services asserts that the securities consultation service of this case constitutes a quasi-investment advisory business, in light of the fact that: (a) in real-time telephone information service, a securities consultation service does not provide a service to a specific person who has entered into an advisory contract, such as an investment advisory business; and (b) if many and unspecified persons access to telephone, the information provider is merely informed of the securities information held by the provider of information; and (c) in the case of an entrepreneur who provides various pay advice in connection with the Internet securities investment consultation, the securities consultation service of this case constitutes a quasi-investment advisory business; (d)

(2) The former Securities and Exchange Act (amended by Act No. 6987 of Oct. 4, 2003) refers to the business of advising by oral statement, document, or other means about the value of securities or the judgment of investment in securities (referring to the judgment on the kinds, items, quantity, and prices of securities subject to investment, and the classification, method, timing, etc. of sale and purchase). However, if a person other than a company which registered an investment advisory business through publications, publications, correspondence materials, or broadcasts, etc. issued or transmitted to many and unspecified persons and which they may purchase or receive at any time, gives investment advice, it does not constitute an investment advisory business, and there is no need to take a separate procedure (see Articles 2(10)1 and 70-2(1) of the former Securities and Exchange Act, Articles 2-5 subparag. 1 and 3 of the Enforcement Decree of the same Act).

(3) With respect to this case, although a person eligible for a securities consultation, which takes the form of real-time telephone information service, is not limited to a specific person, the service user is connected with the corresponding number, and then 1:1 advice is made as well as the investment advisory service, and the service user is connected with the counsel. ② In addition, although the real-time securities consultation service does not expressly conclude the advisory contract as an investment advisory service ordinarily conducted, it can be seen that the contract was concluded in the form of a so-called factual contractual relationship, ③ the voice information search service among the information providing securities through telephone information service is recorded with a certain amount of securities information, and the service user can listen to it if it is not subject to any specific person, while the real-time securities consultation service is likely to fall under a similar investment advisory service under the Securities and Exchange Act in view of the fact that the counselor has directly transmitted various information to many and unspecified persons, so it cannot be viewed that it is possible to receive it from time to time.

D. Whether aiding and abetting is established

(1) In light of the fact that the information provider voluntarily assumes the obligation to register as a specific telecommunications business operator under the Telecommunications Business Act, and there is no obligation or authority to examine and supervise the registration of the Defendant company, and the Defendant company provided telecommunications line facility leasing services as a key telecommunications business operator, and the other party to the provision of services is not limited to the registered telecommunications business operator, and there is no provision to punish the non-registered business operator by leasing the line facilities, the Defendants do not have any act of aiding and abetting the information provider’s violation of the Telecommunications Business Act, and the Defendants do not recognize the fiduciary status to establish aiding and abetting by omission.

However, aiding and abetting under the Criminal Code refers to all direct and indirect acts that facilitate the principal's implementation, and aiding and abetting such aiding and abetting not only tangible and material aiding and abetting but also aiding and abetting and aiding and abetting the principal's implementation, such as strengthening the resolution of the crime.

If the provision of real-time services without registering a special category telecommunications business is an act of the principal offender, it is reasonable to view that the Defendant Company leased 060 lines to the information provider as the principal offender and aiding and abetting the above act of the said act of the principal offender.

(2) Furthermore, according to the following circumstances acknowledged as recorded in the records, i.e., ① the provision of real-time telephone information services to users of the online service (70 pages 285) referring to the information and communications network, referring to the real-time provision of information and communications services by Defendant companies, 1 and 2 are clearly aware of the fact in the process of promoting and running real-time telephone information service, and Defendant 4, 6, and 8 are also aware of the above contents in the process of providing information and communications services, and 1: real-time counseling services are provided to users of the above service without the authority to provide information and communications services (see, e.g., Supreme Court Decision 200Du1582, Jan. 9, 203; 200Du1582, Apr. 1, 2007).

(3) On the other hand, Defendant 1 and 2 asserted that since the 060-time rental business after May 28, 2001 transferred from the K head office to the branch office, Defendant 1 and 2 did not bear the responsibility for aiding and abetting a contract concluded after the above point of time.

However, in light of the following circumstances acknowledged in the record, namely, Defendant 1 and 2 engaged in real-time services, preparation of standard contracts, revision of terms and conditions, and guidelines for the operation of telephone information services, and the execution of contracts in accordance with the guidelines for the operation of telephone information services and standard contract form prepared at the head office in the case branch (business handling station) and the fact that the contract is only carried out in accordance with the guidelines for the operation of telephone information services and the standard contract form prepared at the head office, and that there was no change in the execution of contracts in accordance with the operation guidelines or the contract form prepared by the above defendants as working-level officers, Defendant 1 and 2 are still liable for aiding and abetting even after the time of transfer of contract duties to the K branch.

E. Determination of the expected possibility argument

The mere fact that Defendant 4 asserts cannot be readily concluded that the instant act by Defendant 4 was an act without possibility of expectation.

F. Thus, the defendants' assertion is without merit, and the court below is justified in finding the defendants guilty of the facts charged of this case, and there is no error of law by misunderstanding facts or by misunderstanding legal principles which affected the conclusion

4. Judgment on the assertion of unfair sentencing

A. Defendant 4 and the Telecom asserted that the punishment of each fine of KRW 3 million imposed by the court below against the above Defendants and KRW 7 million is too unreasonable.

B. In addition to the assertion of unreasonable sentencing, Defendant 4, 6, and 8 (hereinafter “Defendant 4, etc.”) had been in charge of real-time telephone information service in accordance with the company’s internal personnel policy when the real-time telephone information service business is already being implemented. Defendant 4, etc. did not possess a dedicated line network and exchange system, and Defendant 4 et al. were carrying out the business by leasing the line network from Defendant K, etc., and Defendant 4 et al. did not gain personal benefits from the instant crime. Defendant 4 et al. denied the instant crime. However, this appears to have resulted from the error of legal interpretation. Meanwhile, Defendant 4, etc. was responsible for contributing to promoting public welfare by ensuring the sound development of telecommunications business as a key telecommunications business operator and promoting users’ convenience. In addition, Defendant 4 et al., environment, personality and behavior, Defendant 4’s age, motive and motive of the instant crime, etc., and Defendant 4 were too inappropriate after considering the circumstances of each of the instant case.

5. Conclusion

Therefore, the appeal of Defendant 1, 2, cases, royalties, Onnuris, and telecom is dismissed in accordance with Article 364(4) of the Criminal Procedure Act on the ground that there is no reason. Defendant 4, 6, and 8 are reversed the judgment of the court below in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment below is reversed and it is again decided as follows.

Defendant 4, 6, and 8's criminal facts and the summary of the evidence recognized by this court are as shown in each corresponding column of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

A. Aid and abetting the violation of each of the Telecommunications Business Act by Defendant 4, 6, and 8: Article 70 Subparag. 3 and Article 19(1) of the Telecommunications Business Act; Article 32 of the Criminal Act;

B. Defendant 8’s aiding and abetting violation of each of the Securities and Exchange Act: Articles 210 subparag. 4-2 and 70-2(1) of the former Securities and Exchange Act and Article 32 of the Criminal Act

1. Selection of punishment;

Selection of each fine

1. Aggravation of concurrent crimes;

Articles 37 (former part) and 38 (1) 2 of the Criminal Act

1. Determination of applicable sentences;

Each fine of 3 million won

1. Invitation of a workhouse;

Articles 70 and 69(2) of each Criminal Code (in case of a daily conversion of 50,000 won)

1. Suspension of sentence;

Article 59 (1) of each Criminal Code (Taking into account these circumstances in the grounds for reversal)

Judges Kim Jong-Un (Presiding Judge)