Whether a crime is established solely by delivering or spreading malicious programs (affirmative), and whether such act requires the damage, destruction, alteration, fabrication, or interference with the operation of an information and communications system, etc. (negative) / Standard for determining whether such act constitutes an “malicious program”

Articles 48(2) and 70-2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

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

Defendant 1 and two others

Prosecutor

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

Busan District Court Decision 2017No4344 decided October 5, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. Case history

A. The summary of the facts charged of this case is that the Defendants’ act of selling a program that automatically posts, writess, and records, and records, and transmits a page and a draft book through the “IP change function”, “security text bypassing,” and “a dump dumping function” (hereinafter “instant program”) constitutes a crime of spreading malicious program under Articles 70-2 and 48(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”).

B. As to this, the lower court reversed the first instance judgment convicting the Defendants on the charges of this case and acquitted the Defendants on the grounds that the evidence submitted by the prosecutor alone insufficient to recognize that the instant program constituted a “malicious program” that could interfere with the operation of an information and communications system, etc. under Article 48(2) of the Information and Communications Network Act.

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

A. Article 48(2) of the Information and Communications Network Act provides that “No person shall destroy, destroy, alter, or forge an information and communications system, data, program, or similar without any justifiable reason, or deliver or spread a program that may interfere with its operation (hereinafter “malicious program”).” Article 70-2 provides that “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.”

B. The crime of violating Articles 70-2 and 48(2) of the Information and Communications Network Act is established solely on the act of transmitting 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 such act does not require any damage, destruction, alteration, fabrication, or interference with the operation of information and communications systems, etc. Accordingly, it is not necessary to determine whether malicious programs constitute such malicious programs, based on the program itself, and should be determined by comprehensively taking into account the purpose of use and technical composition, operating methods, impact on information and communications systems, etc., the consent of the operator of the program installation (see Supreme Court Decision 2017Do16520, Dec. 12, 2019).

C. According to the reasoning of the lower judgment and the record, the following facts and circumstances are revealed.

1) The instant program is intended to use the program for advertising companies, products, etc. on the Internet community, etc., and is designed to record automatically posted comments and comments on ○○○ carpets or Blouses, etc., and to repeatedly carry out the work of sending pages and first books.

2) The instant program is engaged in automatically registering comments or sending pages in order to work at a higher speed than normally working by ordinary users, and, in principle, is engaged in the foregoing work in the same way and manner as ordinary users directly work.

3) Some of the instant programs are designed so that they may circumvent a beauty rupture program operated by ○○○○ by using IP change function, security text rounding function, and dumping function. However, this does not interfere with the operation of a beauty ruptureing program by preventing physical performance of its function, such as destroying, destroying, altering, or forging the information and communications system, etc. of ○○○○○○, but rather merely assist the program to pass through without falling under the causes for blocking within the scope of operation scheduled as the program.

4) There is no evidence to deem that there is an obstacle to the use of the instant program, such as obstructing the performance of functions such as an information and communications system, or downloading a server such as ○○○, etc.

D. Examining the foregoing facts 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 only with the evidence submitted by the prosecutor. In the same purport, the lower court reversed the judgment of the first instance that found the Defendant guilty of the instant facts charged, and did not err in the misapprehension of the legal doctrine on “malicious program” under Article 48(2) of the Information and Communications Network Act, contrary

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 Noh Jeong-hee (Presiding Justice)