(영문) 광주지방법원 2020.12.17. 선고 2020나53148 판결

The court's explanation on this part is the same as the reasoning of the judgment of the court of first instance. Thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. The plaintiff's assertion and judgment

A. Determination as to the assertion regarding the concealment of evidence by the prosecutor of the first instance trial in the relevant criminal case

1) Determination as to the assertion of concealment of monetary details

The plaintiff asserts that the S prosecutor who was the public trial prosecutor at the time of the trial of the relevant criminal case, obtained the entire monetary content of the plaintiff and the currency content of his accomplice C, and submitted them to the appellate court.

First of all, it is insufficient to recognize that the S prosecutor concealed the Plaintiff’s assertion that the prosecutor concealed the Plaintiff’s entire monetary content only because the Plaintiff’s entire monetary content was submitted at the appellate court of the relevant criminal case. It is insufficient to acknowledge that the S prosecutor failed to submit it with knowledge of the above materials in the investigation records of the accomplice. There is no evidence to acknowledge it, and there is no circumstance to deem that the above materials were attached to the Plaintiff’s investigation data.

Then, the Plaintiff asserted that S prosecutor concealed C’s entire monetary content, and thus, the fact that C’s entire monetary content was not submitted in the relevant criminal procedure does not conflict between the parties. However, each of the above evidence Nos. 13 and 14, which is acknowledged by comprehensively considering the overall purport of the pleadings, is indicated as follows: (a) the Plaintiff-related criminal case first instance counsel’s summary of pleading on August 12, 2013, stating only the Plaintiff’s assertion that the fact-finding should be requested for fact-finding; and (b) there is no mentioning that there is a need for the whole monetary content of C even in the Plaintiff-related criminal case appellate trial attorney’s summary of pleading on May 12, 2014; and (c) the evidence and the above fact-finding alone presented by the Plaintiff requested C in the relevant criminal procedure first instance trial in the relevant criminal case and there is insufficient evidence to acknowledge that S prosecutor intentionally concealed it despite the existence of the above materials.

In addition, the plaintiff asserts that S prosecutor concealed the entire monetary content of the plaintiff's spouse. According to Gap's evidence No. 10, it can be acknowledged that the investigation agency requested the plaintiff's mobile phone's mobile phone to provide data verifying communications for tracking the location of the base station. However, the above fact of recognition alone is insufficient to recognize that S prosecutor intentionally concealed the above data despite the plaintiff's request in the first instance trial of the relevant criminal case, and there is no other evidence to acknowledge it.

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination on the assertion that CCTV data are concealed

The plaintiff asserts that although the investigation agency confirmed and extracted CCTV of Seocho-gu Seoul Metropolitan Government V apartment apartment, CCTV near the Seoul Seocho-gu Arts Center located in Seocho-gu Seoul Metropolitan Government, and the Yongsan-gu fire fighting center located in Yongsan-gu, Yongsan-gu, Seoul Metropolitan Government, the 119 Fire Center, it was argued that the S prosecutor did not have or could not find CCTV data in the trial proceedings in the relevant criminal case, the S prosecutor concealed it without submitting it.

According to the evidence evidence No. 1-2, the police confirmed and extracted the above apartment elevator and CCTV of the underground parking lot on August 20, 2012 and August 21, 2012, but it is recognized that the above evidence and evidence No. 1-1 were not destroyed and kept, i.e., each of the above images appears not to have been destroyed and stored, and there is no evidence to deem that each CCTV image of the plaintiff's assertion was attached to the investigation records of the relevant criminal case and sent to the prosecution. In the investigation report (CCTV U.S.) on September 11, 2013, the investigation records of the relevant criminal case were submitted by the plaintiff on September 11, 2013, it was not presumed that the CCTV image around the Seocho-gu Seoul Arts Center, Seoul, which the plaintiff stated that it was only the plaintiff, and it was not presumed that the period of storage was also the same. In light of the above facts and the evidence presented by the prosecutor, there is no other evidence to acknowledge that the CCTV was not concealed.

Therefore, the plaintiff's assertion on this part is without merit.

3) Determination as to the assertion of concealment of Plaintiff’s photograph

The plaintiff asserted that S prosecutor concealed the above photograph without submitting it in the first instance trial proceedings, and that the above photograph was submitted in the appellate trial, even though the plaintiff requested the submission of the above photograph.

However, even if the plaintiff's photograph presented to the accomplice was submitted in the trial proceedings in the related criminal case concerned, it is insufficient to recognize that the S prosecutor had concealed the above photograph without intentionally submitting it, and there is no other evidence to acknowledge it. Thus, the plaintiff's assertion on this part is without merit.

B. Determination on the assertion regarding the request for the provision of communication confirmation data

1) Determination on the Plaintiff’s assertion that the Plaintiff obtained the monetary content without the court’s permission

The plaintiff asserts that the investigative agency illegally obtained the monetary content from July 1, 2012 to September 6, 2012 without the permission of the court in the relevant criminal case.

According to the evidence No. 3, the fact that the court obtained permission (written permission number X) by requesting the data verifying the communication confirmation regarding the telephone details (e.g., launch and reverse communication details) and the location of the base station from July 1, 2012 to September 6, 2012 regarding the time used by the investigative agency of the relevant criminal case for the plaintiff, can be recognized. Thus, the prior plaintiff's above assertion on a different premise is without merit. 2) The judgment on the policyholder's false assertion is without merit.

The plaintiff asserts that, in the relevant criminal cases, the insured was falsely recorded as the plaintiff without any ground when requesting the data verifying the location tracking of mobile phone calls using the telecommunication numbers opened in the name of Y and the provision of data verifying the communications of telephone calls.

The right to self-determination of personal information derived from the dignity and value of human beings under Article 10 of the Constitution, the right to pursue happiness, and the right to privacy under Article 17 of the Constitution, refers to the right of an owner of information to decide when and to what extent his/her personal information should be disclosed and used. Personal information subject to protection of the right to self-determination of personal information refers to all the information characterized by an individual’s character, such as body, faith, social status, status, etc., and includes personal information formed in public life or already disclosed in public life without being limited to the information belonging to an individual’s secret territory. Meanwhile, the right to self-determination of personal information, where necessary for national security, maintenance of public order, or public welfare, may be restricted by an Act pursuant to Article 37(2) of the Constitution, and thus, if a prosecutor or investigation office’s request for the provision of data by a telecommunications business operator or a telecommunications business operator, etc. is not objectively construed as an infringement of the right of a user’s right to self-determination of personal information.

According to the statement of evidence No. 4-1 as to the instant case, the fact that the Plaintiff was permitted to use the mobile phone from July 1, 2012 to October 25, 2012 by stating the subscriber as the Plaintiff at the time of request to provide data verifying the location tracking the location of the sending base station and telephone calls from July 1, 2012 to October 25, 2012. However, the following circumstances, which are acknowledged by considering the overall purport of oral argument in evidence No. 8 and No. 4-2, are as follows: (a) the investigative agency later used the aforementioned mobile phone from October 24 to November 7, 2012 by stating U.S. as the actual title holder at the time of request to provide data verifying the personal information self-determination of the Plaintiff’s mobile phone; (b) whether the investigative agency violated the Plaintiff’s right to self-determination of personal information; and (c) whether the Plaintiff violated the Plaintiff’s right to self-determination of personal information and the right to use the mobile phone under the aforementioned investigation or investigation.

3) Determination on the assertion of failure to notify the fact of communication confirmation data provision

A) The plaintiff's assertion

The plaintiff asserts that in the relevant criminal case, the investigative agency did not notify the plaintiff of the fact of communication confirmation data even though it was provided nine via the request for the provision of communication confirmation data to the plaintiff, or violated Article 13-3(1) of the Protection of Communications Secrets Act by failing to notify the plaintiff of the fact within 30 days from the date of prosecution against the plaintiff.

B) the facts of recognition

Comprehensively taking account of the overall purport of the statements and arguments set forth in subparagraphs 3 through 7, 10, 11, 5, and 6 of the above evidence, ① An investigative agency already executed nine requests for the provision of communication confirmation data to the Plaintiff including a request for the provision of communication confirmation data from X No. X No. X. ② Requests for the provision of communication confirmation data from among the above nine cases are related to the relevant criminal cases against the Plaintiff, which was indicted by the Plaintiff on December 22, 2012, before June 3, 2013; ③ Four out of the remaining eight cases (written permission No. AC, AD, AE, and AF) are related to the relevant criminal cases against the Plaintiff, and the fact that each notice was filed by the Plaintiff on June 3, 2013, and the remainder of four (4) permits for the provision of communication confirmation data from the Plaintiff, and 30 G No. 251, Jun. 18, 2013, the remainder of five (30G No.

C) Determination

According to Article 13(1)2 and (2) of the Protection of Communications Secrets Act, if necessary for investigation, a judicial police officer shall obtain permission from a court and request a telecommunications business operator under Telecommunications Business Act to provide communication confirmation data, and Article 13-3(1) of the same Act provides that when a public prosecution is instituted for a case for which communication confirmation data are provided, the person subject to the provision of communication confirmation data shall be notified in writing of the fact of receiving communication confirmation data, the requesting agency, and the period

According to the above facts and the above provisions of the Protection of Communications Secrets Act, the request for the provision of communication confirmation data of the above permit number X, AC, AD, AE, and AF for each criminal case against the plaintiff is related to the case against the plaintiff, and such notification has already been made lawfully on December 18, 2012 and December 22, 2012 prior to the institution of public prosecution against the plaintiff (as to the plaintiff, the above notification should be made after the institution of public prosecution against the plaintiff, so it is reasonable that the notification made to the plaintiff before the institution of public prosecution is unlawful. However, it is reasonable to view that the above provision of the above Act provides for the termination date of the notification of communication confirmation data for criminal investigation. The above permit number AC, AD, AE, and AF 4 co-offenders related to the criminal case against B, and there is no evidence to acknowledge the violation of the Protection of Communications Secrets Act as to the plaintiff's notification within 30 days from July 31, 2015.

4) Determination on the Plaintiff’s assertion of false answer as to the Plaintiff’s request for information disclosure

The plaintiff asserts that the investigative agency filed a request for disclosure of information on the details of request for the provision of communication confirmation data, but the investigative agency made a false reply with the content that data other than the two documents are not kept.

In full view of each of the statements and arguments in Gap evidence Nos. 3 through 7, around May 13, 2015, the Director of the Gyeonggi-do Police Agency informed the plaintiff around August 10, 2015 that the plaintiff did not keep data other than data on communication confirmation data provided, but confirmed eight cases of request for the provision of communication confirmation data to the plaintiff and notified the plaintiff of the details of the notification. On or around October 30, 2015, the Commissioner of the Gyeonggi-do Police Agency notified the plaintiff of the content of the request for the provision of communication confirmation data. Since then, on or around October 30, 2015, the Commissioner of the Gyeonggi-do Police Agency notified the plaintiff of the content of the request for the provision of communication confirmation data by the investigative agency on the ground that the police officer in charge of reply only 2 cases related to the criminal case against the plaintiff during the process of processing the plaintiff's appeal against the plaintiff and provided additional data on the grounds that the remaining data were omitted. Thus, the part of the plaintiff's response to the request for communication confirmation data was not acknowledged otherwise.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.