The meaning of "other person's secret" and "the infringement and escape of other person's secret processed, stored or transmitted by an information and communications network" under Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Articles 49 and 71 subparag. 11 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Supreme Court Decision 2005Do7309 Decided March 24, 2006 (Gong2006Sang, 773), Supreme Court Decision 2010Do212 Decided January 12, 2012, Supreme Court Decision 2010Do10576 Decided December 13, 2012 (Gong2013Sang, 199)

Defendant 1 and one other

Prosecutor

Attorneys Kim Jong-hwan et al.

Gwangju District Court Decision 2013No1096 Decided November 20, 2013

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) due to the infringement and escape of another person’s

(1) The term “other person’s secret” under Article 49 of the Information and Communications Network Act means a fact that is not generally known and that does not notify it to other persons, which is beneficial to himself/herself (see Supreme Court Decision 2005Do7309, Mar. 24, 2006). In addition, “the infringement of other person’s secret processed, stored, or transmitted through an information and communications network” under the aforementioned provision refers to an act of acquiring another person’s secret processed, stored, or transmitted through an information and communications network by unlawful means or method, such as intrusion on an information and communications network, and “the illegal use of other person’s secret processed, stored, or transmitted through an information and communications network” refers to an act of using such secret by a person who has acquired another person’s secret processed, stored, or transmitted through an information and communications network or by a person who has been aware of the fact that such secret was acquired by such means or method, such as intrusion on an information and communications network (see Supreme Court Decision 2010Do10

(2) The gist of the lower judgment is as follows.

In other words, although the post-purchase notice containing the order information of the members of the Internet shopping mall in this case does not constitute another person's secret, personal information, such as the resident registration number, ID, password, mobile phone number, address, etc. of the members, can be deemed to constitute another person's secret. However, the Defendants acquired such information at the time when they had legitimate authority to access the Internet shopping mall server, and the Defendants cannot be deemed to have obtained another person's secret by unlawful means or means. Thus, even if the Defendants copied and stored it on the ○○ Love website server operated by Defendant 1, such act alone cannot be deemed as infringing or attempting another person's secret.

(3) Examining the records in accordance with the above legal principles, the above determination by the court below is just, and there is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or of misapprehending the legal principles on the crime of violation of the Information and Communications Network Act due to the infringement or

2. As to the ground of appeal as to the violation of the Information and Communications Network Act (Violation of Information and Communications Network Act, etc.)

(1) The lower court stated that “the entire judgment” in the “scope of appeal” column of the petition of appeal and the cover of the statement of grounds of appeal submitted by the prosecutor, but according to the written statement of grounds of appeal, only the part concerning the violation of the Information and Communications Network Act due to the violation of another person’s confidential information and communication network usage among the facts charged in the instant case against the Defendants is included in the grounds of appeal, and the part concerning the violation of the Information and Communications Network Act and interference with business due to

(2) However, the first instance court rendered a judgment of innocence in whole against the Defendants, and even according to the reasoning of the judgment below, the prosecutor appealeded against the entire judgment of the first instance, and thus, it shall be deemed that the first instance court was reversed without final and conclusive judgment. In addition, according to the records, the prosecutor submitted the grounds of appeal stating that “Inasmuch as the prosecutor sought the continuation of the trial date for the modification of an indictment on the 9th trial date, but did not apply for the modification of an indictment by the closure of pleadings against the Defendants, the first instance court erred in the incomplete hearing.”

Therefore, barring any special circumstance where it is possible to close the pleading after undergoing the examination of evidence and the necessary examination of evidence, the court's discretion is the matters belonging to the court's discretion. As can be seen by the record, if the prosecutor applied for the amendment of indictment two times before the 9th trial date of the first instance court and obtained permission from the court of the first instance, the prosecutor did not apply for the amendment of the indictment separately in the original trial and other circumstances, it is difficult to say that there is an error in the incomplete hearing in the first instance judgment. Furthermore, as long as the conclusion is legitimate by dismissing all appeals against the Defendants by the prosecutor against the Defendants in the original judgment, it is not necessary to reverse the original judgment on the ground that the error of the court below is an unlawful cause affecting the judgment

3. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)