[1] The scope of the act falling under the "disclosure of another person's secret processed, stored or transmitted by the information and communications network" under Article 49 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[2] Whether the provisions of the General Provisions of the Criminal Act concerning accomplices apply to “a person who has leaked secrets in the course of performing duties,” which are related to a public official’s act of divulgence of secrets in the course of performing duties, and whether such legal principles are likewise applied to cases under Article 49 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[1] Article 49 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 14080, Mar. 22, 2016; hereinafter “Information and Communications Network Act”) provides that “No person shall damage another person’s information processed, stored, or transmitted through an information and communications network, or infringe, use, or divulge another person’s secrets.” Article 71 Subparag. 11 of the same Act provides that “a person who damages another person’s information or infringes, uses, or divulges another person’s secrets in violation of Article 49” shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding 50 million won.” Article 49 of the Information and Communications Network Act does not mean any divulgence of another person’s secrets, but it is reasonable to interpret the aforementioned legal doctrine as to the act of disclosure of another person’s secrets processed, stored, or transmitted through an information and communications network, or by an unlawful means or method, such as intrusion on an information and communications network, or by a person who is aware of such secrets.

[2] The provisions of the general provisions of the Criminal Act concerning accomplices cannot be applied to a person who is or was a public official and who discloses secrets in the course of performing his/her duties, in light of the fact that Article 127 of the Criminal Act only punishs a person who discloses secrets in the course of performing his/her duties, and that there is no provision punishing the other party who has leaked secrets in the course of performing his/her duties, the provisions of the general provisions of the Criminal Act concerning accomplices cannot be applied to a person who has leaked secrets in the course of performing duties. Such legal principles likewise apply to Article 49 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 14080, Mar.

[1] Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 1, 28-2(1), 49, and 71 subparag. 11 (see current Article 71(1)11) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 14080, Mar. 22, 2016); Articles 30, 31, 32, and 127 of the Criminal Act; Articles 49, and 71 subparag. 11 (see current Article 71(1)11) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 14080, Mar. 22, 2016)

[1] Supreme Court Decision 2010Do10576 Decided December 13, 2012 (Gong2013Sang, 199) / [2] Supreme Court Decision 2009Do544 Decided June 23, 2009, Supreme Court Decision 2009Do3642 Decided April 28, 201 (Gong201Sang, 1212)

Defendant 1 and one other

Defendant 2 and Prosecutor

Attorneys Kim Young-jin et al.

Seoul High Court Decision 2016No2667 decided March 2, 2017

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant 2’s grounds of appeal

According to the records, Defendant 2 appealed against the judgment of the court of first instance, and asserted only unfair sentencing as the grounds for appeal, and the lower court did not ex officio decide on the matters alleged in the grounds of appeal. In such a case, the allegation that the lower court violated the rules of evidence on the part of offering of a bribe of KRW 50 million on June 25, 2015, and erred by misapprehending the legal doctrine on the relationship to duties and the consideration for the crime of offering a bribe

2. Judgment on the grounds of appeal by the prosecutor

A. The violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

(1) Relevant legal principles

Article 49 (hereinafter “instant provision”) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 14080, Mar. 22, 2016; hereinafter “Information and Communications Network Act”) provides that “No person shall damage another person’s information processed, stored, or transmitted through an information and communications network, or infringe, use, or divulge another person’s secret.” Article 71 Subparag. 11 provides that “a person who damages another person’s information in violation of Article 49, or infringes, uses, or divulges another person’s secret” shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding 50,00 won.” Article 71 subparag. 11 of the same Act does not mean any divulgence of another person’s secret, which is processed, stored, or transmitted through an information and communications network, or who acquires another person’s secret processed, stored, or transmitted through such information and communications network, or who has yet to know that such secret is acquired through the said network’s legislative purpose and statutory interpretation of the Act.

On the other hand, the provisions of the general provisions of the Criminal Act concerning accomplices cannot be applied to a person who is or was a public official and who discloses secrets in the course of performing his/her duties, in light of the fact that Article 127 of the Criminal Act only punishs a person who is or was a public official to divulge secrets in the course of performing his/her duties, and that there is no provision punishing the other party who has leaked secrets in the course of performing his/her duties, the provisions of the general provisions of the Criminal Act concerning accomplices shall not be applicable to a person who has divulged secrets in the course of performing duties (see, e.g., Supreme Court Decisions 2009Do544, Jun. 23, 2009; 2009Do3642, Apr. 28, 2011). Such legal principles

(2) The part on the charge concerning the Defendants’ joint crime

The lower court determined that it is difficult to view that Defendant 1 obtained the tax information data by unlawful means or means through the information and communications network, and even if the acquired tax information data were leaked, it is difficult to view it as a case of divulging another’s secrets processed, stored, or transmitted through the information and communications network. For that reason, the lower court cited that ① Defendant 1 or his subordinate staff Nonindicted 1, a tax official, was authorized to access at the time of access to the HomeT System or the Data Connection Analysis System, etc. by the National Tax Service, the information and communications network, in order to acquire the instant tax information data, and that the manager did not perform the above act without the consent of the manager and did not take any measures to prohibit access, and ② the tax information and communications data acquired by the Defendant is irrelevant to the stability of

In addition, in the case of Defendant 2 who was provided with the taxation information data of this case by Defendant 1, the lower court determined that Defendant 1’s act of acquiring and divulging the taxation information data of this case, which is the premise thereof, cannot be deemed to violate the provision of this case, and that Defendant 1’s act of divulging the taxation information data of this case by Defendant 1, who is a tax official, and the act of Defendant 2’s act of divulging the secrets from him, cannot be punished as a joint principal offender

The lower court’s determination is sufficiently acceptable as it is in accordance with the foregoing legal doctrine. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the crime of divulgence of secrets under Articles 71 subparag.

(3) The part of the facts charged regarding the joint crimes committed by Defendant 2, Nonindicted 2, Nonindicted 3, Nonindicted 4, and Nonindicted 5

For the following reasons, the lower court determined that Defendant 2 cannot be punished as a co-principal for the crime of violating the instant provision against Defendant 2. ① Nonindicted 2, an employee of the ○○○○○ Association, had access to the integrated management system based on one’s access authority, and had access to and output of the records of electrical construction by two construction companies through Nonindicted 3, it is difficult to view that Defendant 2 violated the instant provision even if he leaked them to Defendant 2 via Nonindicted 3, it is difficult to deem that the act committed a crime of violating the instant provision. ② Nonindicted 2, who accessed the integrated management system by accessing Nonindicted 6’s employees number and password, inquired and printed out the details of the records of electrical construction by Nonindicted 25, and then leaked them to Defendant 2 through Nonindicted 3, constitutes a case where he divulges another’s secret processed, stored, or transmitted through an information and communications network, but Nonindicted 2, who divulged the records of electrical construction by Nonindicted 25, via Defendant 3, constitutes a crime of infringement.

The lower court’s determination is sufficiently acceptable as it is in accordance with the foregoing legal doctrine. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of the crime of divulgence of secrets and the crime of conspiracy against the will of an accomplice.

B. Part on the violation of the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter “Unfair Competition Prevention Act”).

The lower court determined that it is difficult to view the instant information as a trade secret because it is difficult to view that it satisfies the independent economic value and confidential management requirements that should be equipped with the trade secret, in full view of the following: (a) the details of the tax information and the records of performance of projects by the buyer of the construction company; (b) the legal basis for the submission of the instant information; (c) the purpose of the submission of the information; (d) the cost and effort for the creation and acquisition of the instant information; and (e) whether the use of the instant information would benefit from competition; (b) the location and use of the instant information; (c) whether the victimized company maintains and manages

Examining the reasoning of the lower judgment in light of the record, the lower judgment is justifiable. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on trade secrets

3. Conclusion

Defendant 2 and the Prosecutor’s final appeal are all dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)