[1] The admissibility of text information stored in the cellular phone in relation to the crime of violating Article 65 (1) 3 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and the photographic image taken on the cell phone screen

[2] Whether the hearsay rule of Article 310-2 of the Criminal Procedure Act applies to a case where text information stored in a mobile phone is submitted as evidence with regard to a violation of Article 65 (1) 3 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (negative)

[3] The case holding that it is unlawful to deny admissibility of evidence on the ground that the defendant denies the establishment and authenticity of the contents of a photograph taken by using text messages on a cell phone screen in relation to a violation of Article 65 (1) 3 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[1] Article 65(1)3 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 7812, Dec. 30, 2005) provides a punishment for repeatedly committing an act of causing fear or apprehensions to other parties through an information and communications network. In a case where a prosecutor submits a cell phone device in which text information is stored as evidence of conviction against the above crime to a court, the relevant text information itself stored in the cell phone may be used as evidence as direct means of crime. In addition, the prosecutor may submit as evidence the cell phone photographic image of the cell phone screen so that the user of the cell phone can read such text information. In addition, in order to use the cell phone as evidence, it is impossible or difficult to submit the cell phone image with which text information is stored in the court, and the video of the cell phone shall be proved that it is identical to the text information and accurate on the screen of the cell phone screen.

[2] Article 310-2 of the Criminal Procedure Act declares the so-called hearsay rule that the statement of a person who directly experienced the fact should be submitted directly to the court and that the statement or document, which is a substitute for this, should not be submitted. However, in cases where the text information stored in the cellular phone for the charges of repeatedly causing fear or apprehensions through an information and communications network, is evidence of the facts charged, the text information is the direct means of the crime, and it does not constitute a substitute for the statement of an experienced person, so the hearsay rule prescribed in Article 310-2 of the Criminal Procedure Act does not apply.

[3] The case holding that in relation to the crime of violation of Article 65 (1) 3 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 7812 of Dec. 30, 2005), it is unlawful to deny admissibility of evidence on the ground that the defendant denies the establishment and authenticity of the contents of the photograph taken by displaying text messages on the cell phone page

[1] Article 65 (1) 3 (see current Article 74 (1) 3) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 7812, Dec. 30, 2005) / [2] Article 310-2 of the Criminal Procedure Act / [3] Article 310-2 of the Criminal Procedure Act

Defendant

Prosecutor

Seoul Western District Court Decision 2005No1051 Decided April 6, 2006

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

Article 65 (1) 3 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 7812 of Dec. 30, 2005) punishs the other party repeatedly engaging in an act of causing fear or apprehension through an information and communications network. If a prosecutor submits a cell phone device in which text information is stored as evidence of conviction of the above crime to the court, the text information stored in the cell phone machine itself can be used as evidence as a direct means of crime. In addition, the prosecutor may submit as evidence a photograph of the cell phone screen made available for the user of the cell phone to read such text information. Thus, it is difficult or difficult to submit the cell phone device in which text information is stored to use as evidence, and the video of the cell phone shall be proved that it is identical to the text information shown in the cell phone screen (see Supreme Court Decision 200Do5461 of Oct. 22, 202).

Meanwhile, Article 310-2 of the Criminal Procedure Act provides that "other than those provided for in Articles 311 through 316, a document stating a statement in place of the statement at a preparatory hearing or on a trial date, or a statement the content of which is another person's statement at a preparatory hearing or on a trial date other than the public trial date, shall not be admitted as evidence." This declares the so-called hearsay rule that the statement of a person who has experienced a fact directly shall be submitted directly to the court and that a statement or document, which is a substitute for this, shall not be submitted. Therefore, as in the case where a written information stored in a cellular phone, is used as evidence, with regard to the facts of repeatedly leading another person to feel fear or uneasiness through an information and communications network, if the written information becomes a direct means for committing a crime, and it does not constitute a substitute for the statement of an experienced person, there is no room to apply the hearsay rule provided for in

On the contrary, the judgment of the court below that the defendant cannot use the text information transmitted in the form of text message as evidence on the screen of the mobile phone, on the ground that the defendant denies its formation and the authenticity of its contents, which affected the conclusion of the judgment by misapprehending the legal principles as to the character of the above text information as evidence and the admissibility of the above pictures, which affected the conclusion of the judgment. The ground of appeal assigning this error has merit.

Therefore, the judgment of the court below is reversed and 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 on the bench.

Justices Kim Nung-hwan (Presiding Justice)