[1] Whether an act of violating Article 14(1) of the former Protection of Communications Secrets Act constitutes a violation of Article 3(1) of the same Act and thus, constitutes a punishment under Article 16(1)1 of the same Act (affirmative in principle)

[2] The purport of prohibiting a third party from recording or listening to conversations that are not disclosed to the public under Article 3(1) of the former Protection of Communications Secrets Act

[1] Article 3(1) of the former Protection of Communications Secrets Act (amended by Act No. 1229, Jan. 14, 2014; hereinafter the same) provides that no one shall record or listen to conversations between others that are not open to the public without following this Act, the Criminal Procedure Act, or the Military Court Act; Article 14(1) of the former Protection of Communications Secrets Act limits cases where listening acts prohibited as above are used by electronic or mechanical means; Article 16(1) of the former Protection of Communications Secrets Act provides that a person who records or listens to conversations between others that are not open to the public in violation of Article 3(1) and a person who discloses or divulges the contents and form of conversations that are known to the public in accordance with subparagraph 1 of the said Article (Article 2(2) of the former Protection of Communications Secrets Act; Article 3(1) of the former Protection of Communications Secrets Act prohibits recording or listening to conversations between others; Article 14(1) of the former Protection of Communications Secrets Act prohibits acts in violation of Article 14(1) of the former Protection of Communications Secrets Act.

[2] Article 3(1) of the former Protection of Communications Secrets Act (amended by Act No. 1229, Jan. 14, 2014) prevents a third party from recording or listening to a conversation that is not disclosed to the public. The purport is that a third party who does not participate in the conversation should not record or listen to a statement between others that makes the conversation. Therefore, barring any special circumstance, a third party who does not participate in the conversation may not record or listen to a statement between others that is not disclosed to the public, or listen to a statement by using an electronic or mechanical device, barring special circumstances.

[1] Articles 3(1), 14(1), and 16(1) of the former Protection of Communications Secrets Act (Amended by Act No. 1229, Jan. 14, 2014) / [2] Articles 3(1) and 16(1) of the former Protection of Communications Secrets Act (Amended by Act No. 1229, Jan. 14, 2014)

[2] Supreme Court Decision 2006Do4981 Decided October 12, 2006 (Gong2006Ha, 1939) Supreme Court Decision 2013Do16404 Decided May 16, 2014

Defendant

Defendant

Law Firm Shin-soo, Attorneys Kim-type et al.

Seoul Central District Court Decision 2013No2841 Decided November 28, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of the legal principles as to the distinction between act and omission under the Protection of Communications Secrets Act

A. Article 3(1) of the former Protection of Communications Secrets Act (amended by Act No. 1229, Jan. 14, 2014; hereinafter the same) provides that no one shall record or listen to conversations between others that are not open to the public without following this Act, the Criminal Procedure Act, or the Military Court Act. Article 14(1) of the former Protection of Communications Secrets Act limits cases where listening acts prohibited as above are used by electronic or mechanical means. From Article 16(1) of the former Protection of Communications Secrets Act, a person who records or listens to conversations between others that are not open to the public in violation of Article 3(1) and a person who discloses or divulges the contents and form of conversations that are known to the public in accordance with subparagraph 1 of the same Article (Article 2(2) of the former Protection of Communications Secrets Act, and a person who violates Article 3(1) of the former Protection of Communications Secrets Act (Article 14(1) of the same Act and Article 16(1)1 of the Military Court Act, barring special circumstances where the act is prohibited under Article 14(1) of the same Act.

In addition, preventing a third party from recording or listening to conversations that is not disclosed to the public under Article 3(1) of the former Protection of Communications Secrets Act is the purport that a third party who does not participate in the conversation from the original point of view shall not record or listen to the statement between others (see, e.g., Supreme Court Decisions 2006Do4981, Oct. 12, 2006; 2013Do16404, May 16, 2014). Therefore, barring any special circumstance, a third party who does not participate in the conversation from the original point of view of recording or listening to the statement by means of electronic or mechanical means is in violation of Article 3(1) of the same Act.

Meanwhile, in a case where a crime can be realized not only through active commission but also by passive omission that does not prevent the occurrence of a result, if the actor has aggravated the situation of another person's legal interests by actively performing his/her physical activities or physical and chemical action, thereby infringing upon another person's legal interests, it is a principle to view it as a crime by an act (see Supreme Court Decision 2002Do995, Jun. 24, 2004).

B. On the grounds indicated in its reasoning, the lower court determined, on the grounds indicated in its reasoning, that the Defendant’s voice introducing Nonindicted 4 to Nonindicted Incorporated Foundation 1 (hereinafter “Nonindicted Incorporated 1”)’s cell phone with Nonindicted Incorporated 2’s cell phone, the chief director of Nonindicted Incorporated 1 (hereinafter “Nonindicted Incorporated 1”) who was on duty, finished telephone conversations between Nonindicted 2 and Nonindicted 8 minutes at the president of Nonindicted Incorporated 2, the head of Nonindicted Incorporated 1, who was in office, and was waiting for the other party’s honorable treatment, while Nonindicted 2 was waiting for the phone first, Nonindicted 3 of the head of the △△△△△ Broadcasting Planning and Publicity Headquarters, in which Nonindicted 3, who was in a usual relationship, divided the phone with Nonindicted 2 and Nonindicted 3, the head of the △△△△ Broadcasting Planning Bureau, and Nonindicted 2, at the time of opening the cell phone call with the Defendant’s cell phone, did not take part in the act of listening to and taking part in the conversation from the first day of the instant case, and did not take part in the conversation.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the meaning of “a conversation between others not open to the public” under Article 3(1) of the former Protection of Communications Secrets Act and the legal doctrine on the subject of punishment under Article 16(1)1 of the same Act

2. As to the assertion of misapprehension of legal principles as to legitimate acts

A. The phrase “act which does not contravene social norms” under Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall legal order or the social ethics or social norms surrounding it, and whether certain act is justified as a justifiable act that does not contravene social norms, and thus, it should be determined individually by considering the motive or purpose of the act, the reasonableness of the means or method of the act, the balance between the third protected benefit and infringed benefit, the fourth urgency, and the fifth supplementary nature that there is no other means or method than the act (see Supreme Court Decision 2003Do300, Sept. 26, 2003).

B. On the grounds indicated in its reasoning, the lower court determined that: (a) the act of hearing and recording does not constitute a justifiable act solely on the ground that the contents of the instant conversation are issues related to the sale of shares in a press company held by Nonindicted Corporation 1, and (b) the Defendant’s act of hearing and recording is not likely to seriously infringe on public interest, and thus, it is difficult to view that the contents of the conversation are likely to seriously infringe on public interest, and thus, constitutes an extraordinary public interest. ② Even if the conversation party’s privacy and freedom is restricted within a certain scope compared to ordinary people, it is difficult for the Defendant to easily limit his/her rights to conversations against his/her will, even if it is restricted within a certain scope; and (c) considering that the contents of the conversation in this case constitute a matter related to the public sale of shares in the press company held by Nonindicted Corporation 1, the lower court determined that the act of hearing and recording constitutes a justifiable act, taking account of the fact that the contents of the conversation in this case’s real name and real name were not disclosed to the public.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine

3. As to the assertion of misapprehension of legal principles as to expected possibility

In order to determine whether there is a possibility of expectation of lawful act against the defendant, the possibility of expectation should be determined from the perspective of the average person instead of the actor under specific circumstances at the time of the act (see Supreme Court Decision 2005Do10101, Oct. 23, 2008).

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court is justifiable to have determined that the Defendant had a possibility of expectation of lawful act, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)