[1] Whether an act of transmitting or spreading malicious programs constitutes a crime under Articles 70-2 and 48(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (affirmative), and whether it is necessary to establish a crime that may result in the damage, destruction, alteration, fabrication, or interference with the operation of an information and communications system, etc. (negative)

[2] In a case where the Defendant was indicted on charges of violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and Information Protection, on the ground that he sent or spreaded a “malicious program” that could interfere with the operation of an information and communications system without justifiable grounds by selling a program that was designed to assist users of the said game to help them more easily sleep and shoot the other party, and from the first success of the shooting to automatically control the other party’s character, the case holding that it is difficult to conclude that the evidence submitted by the prosecutor alone constituted a “malicious program” under Article 48(2) of the same Act

[1] Article 48(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) provides that “No person shall destroy, destroy, alter, or forge an information and communications system, data, program, etc., or deliver or spread a program that may interfere with the operation thereof without justifiable grounds (hereinafter “malicious program”).” Article 70-2 of the same Act provides that “a person who delivers or distributes a malicious program in violation of Article 48(2) shall be punished by imprisonment for not more than seven years or by a fine not exceeding 70 million won.”

Articles 70-2 and 48(2) of the Information and Communications Network Act recognize the establishment of a crime only by delivering or spreading malicious programs, considering the impact of malicious programs on information and communications systems, data, programs, etc. (hereinafter “information and communications systems, etc.”), and do not require that such act may result in the damage, destruction, alteration, forgery, or interference with the operation of information and communications systems, etc. as a result thereof. Whether a malicious program falls under a malicious program shall be based on the program itself, and shall be determined by comprehensively taking into account the purpose of use, technical composition, operating method, impact on information and communications systems, etc., the impact on the installation or operation of the program, whether the operator consents to the installation or operation

[2] In a case where the Defendant was indicted for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”), on the ground that (a) the user of the above game was indicted for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”), on the ground that (b) the user of the game was able to assist the user to easily scam the other party by advertising the other party’s image, (c) from the first success of the game, and (d) sold the program with the function of automatically scaming the other party’s character, and (d) it is difficult for the prosecutor to repeatedly implement the program using the same image on the game screen, and (e) it is difficult for the user to readily view that the program was operated by the other party’s computer or the other party’s personal information and communications system, etc., and (e) it is difficult for the user to readily view that the program was operated by the other party to the program or the other party’s personal information and communications system, etc.

[1] Articles 48(2) and 70-2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. / [2] Articles 48(2) and 70-2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.; Article 325 of the Criminal Procedure

[1] Supreme Court Decision 2017Do16520 Decided December 12, 2019 (Gong2020Sang, 285)

Defendant

Defendant

Law Firm Min-Post, Attorneys Kim Gyeong-hwan et al.

Incheon District Court Decision 2018No2183 Decided February 1, 2019

The judgment below is reversed, and the case is remanded to the Incheon District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Facts charged and the lower judgment

Of the facts charged in the instant case, the summary of the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) is as follows. The Defendant violated Articles 70-2 and 48(2) of the Information and Communications Network Act by selling a program with the function of automatically assisting the other party (hereinafter “instant program”) in the “○○○○○○” game operated by the Nonindicted Limited Company (hereinafter “instant game”).

The lower court deemed that the instant program constituted a “malicious program” that could interfere with the operation of an information and communications system, etc. prescribed in Article 48(2) of the Information and Communications Network Act, and found the Defendant guilty of this part of the facts charged.

2. Whether Article 48(2) of the Information and Communications Network Act constitutes “malicious program”

A. Article 48(2) of the Information and Communications Network Act provides, “No person shall destroy, destroy, alter, or forge an information and communications system, data, program, or similar without justifiable grounds, or deliver or spread a program that may interfere with its operation (hereinafter “malicious program”).” Article 70-2 of the same Act provides, “a person who delivers or distributes a malicious program in violation of Article 48(2) shall be punished by imprisonment with prison labor for not more than seven years or by a fine not exceeding 70 million won.”

Articles 70-2 and 48(2) of the Information and Communications Network Act recognize the establishment of a crime only by delivering or spreading malicious programs, taking into account the impact of malicious programs on information and communications systems, data, programs, etc. (hereinafter “information and communications systems, etc.”), and do not require that such act may result in the damage, destruction, alteration, fabrication, or interference with the operation of information and communications systems, etc. as a result thereof. Whether a malicious program constitutes a malicious program shall be based on the program itself, and shall be determined by comprehensively taking into account the purpose of use and technical composition, operation methods, impact on information and communications systems, etc., the consent of an operator for the installation or operation of the program, etc. (see Supreme Court Decision 2017Do16520, Dec. 12, 2019).

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

The program of this case aims to help users of the game of this case more easily match and shoot the other party. From the first success after the shooting first success, the user of the game of this case automatically applies the other party character. When the user of the game of this case first shoots the other party character, a red physical strength appears in the other party character attachment. The program of this case is designed to repeatedly carry out the operation of moving the Masker to the relevant coordinate by analyzing the image of the body character and recognizing the same image on the game screen.

The instant program is installed on the user’s computer according to the user’s own intent and does not change the information and communications system, game data, or program itself. The instant program is limited to allowing the other party’s character to be more easily and more easily operated to the extent of operating as scheduled by the information and communications system, etc., and the instant program is basically carried out by the same channel and method as that in which the ordinary user directly shoots the other party character even if implementing the instant program.

No evidence exists to deem that the instant program interfered with the performance of functions of the information and communications system, etc. by delaying the access time to the server of other users, making it difficult to access the server, generating mass network traffic to the server, etc.

C. Examining the foregoing factual basis in light of the legal principles as seen earlier, it is difficult to readily conclude that the instant program constituted a “malicious program” under Article 48(2) of the Information and Communications Network Act solely with the evidence submitted by the prosecutor. The lower court erred by misapprehending the legal doctrine on “malicious program” under Article 48(2) of the Information and Communications Network Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Conclusion

The part of the lower judgment against the Information and Communications Network Act should be reversed. Since the lower court rendered a single sentence on the ground that this part of the facts charged and the remainder of the facts charged are concurrent crimes, the lower judgment should be reversed in its entirety.

Without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Dong-won (Presiding Justice)