Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

1. A;

2. B

3. C.

00,000 scams and scams

Law Firm D (for all the defendants)

Attorney E, F, and G

October 31, 2017;

Defendant A shall be punished by imprisonment for one year, by imprisonment for six months, by imprisonment for Defendant B, and by imprisonment for five months: Provided, That with respect to Defendant B and C, the execution of the above sentence shall be suspended for two years from the date this judgment becomes final and conclusive. Ordering Defendant B to provide community service for 120 hours.

Seized evidence Nos. 4 through 6 shall be confiscated from Defendant A.

Criminal History Office

Defendant A posted and sold five kinds of programs, such as I, J, K, L, and M, which he developed on the H site that brokered the sale of the Internet program, and Defendant B, a pro-friendly partner, was willinged to take part in the role of work assistance from October 2015, Defendant C, a pro-friendly partner relationship, to take part in the role of customer counseling from around February 2016 and to receive the sales proceeds from the purchaser of the program.

Accordingly, from June 25, 2014 to June 2015, from Jun. 25, 2015, 401 NFG 1804, from Jun. 25, 2015 to Jun. 2016, 00 to Jun. 30, 2016, 000 YM 02tel 605, Jun. 605, 2016; 1314, the Defendant used a computer installed at the above H site to provide the above I, J, K, L, and M, 30,00 won (in the case of I, J, K, L) and 50,00 won (in the case of automatic M) for the total amount of 30,000 won (in the case of 30,000 won) for 30,000 won and 50,000 won (in the case of 305,000 won) for customers’ new account purchase from Jun. 25, 2014.

(5) On the other hand, the 'I' program is likely to interfere with the operation of online platform operators, such as online information and communications systems, by inducing users to participate in the automatic transmission function of the above program through 'IP change function', 'security-based functions', 'information and communications network operation function', 'information and communications network operation function', 'information and communications network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', 'information and communication network operation function', and 'information and communication network operation function', 'information and communication network operation function', etc., '.

Summary of Evidence

1. Defendants’ respective legal statements

1. Each legal statement of the witness X and Y;

1. J analysis report;

1. K analysis report;

1. L analysis report;

1. Application of Acts and subordinate statutes of M analysis report;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 71 subparag. 9 and 48(2) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 14080, Mar. 22, 2016); Article 30 of the Criminal Act (the delivery of malicious programs to September 22, 2016); Article 70-2 and 48(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 14080, Mar. 22, 2016; hereinafter referred to as “Information and Communications Network Act”); Article 30 (2) of the Criminal Act (the delivery of malicious programs from September 23, 2016) (the delivery of malicious programs from September 23, 2016); each choice of imprisonment with prison labor.

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution;

Defendant B and C: each Criminal Code Article 62(1)(C)

1. Social service order;

Defendant B: Article 62-2 of the Criminal Act

1. Confiscation;

Defendant A: Reasons for sentencing under Article 48(1)1 and 2 of the Criminal Act

Since online platform operators' information and communication systems, data or programs are sold for a considerable period of time that may disturb the function of the online platform operators, and the liability for the crime is not easy. The degree of the Defendants' participation, participation period, revenue size, other Defendants' age, character and conduct, environment, circumstances leading to the crimes, criminal records, etc. shall be determined as ordered in comprehensive consideration of the defendants' age, character and conduct, circumstances after the crimes, criminal records, etc.

Judgment on the Defendants and defense counsel's assertion

1. The assertion;

A. Article 48(2) of the Information and Communications Network Act provides that “A program that may interfere with operation” is against the principle of clarity in the principle of no crime without the law, and violates the Constitution by infringing on the freedom of occupation and the right of freedom of action of those who develop a program in occupation as a hobby.

B. (Joint Contribution) Each of the instant programs is not a program that could interfere with the operation of an information and communications system, data, program, etc.

C. (A program that may interfere with operation) “Delivery” under Article 48(2) of the Information and Communications Network Act means direct input of malicious programs to a specific person’s information and communications system, data, program, etc., and “distribution” under Article 48(2) of the Information and Communications Network Act means direct input of malicious programs to an unspecified person in an information and communications system, data, program, etc. In addition, the Defendants only sold each of the instant programs to a specific person, but do not constitute “distribution” or “distribution” under Article 48(2) of the Information and Communications Network Act, since they do not directly input each of the instant programs to a specific person.

2. Whether it is unconstitutional;

A. Violation of the principle of clarity of the principle of no punishment without law

1) The principle of clarity, which is derived from the principle of no punishment without the law, guaranteed through Articles 12 and 13 of the Constitution of the Republic of Korea, is what the law intends to punish, what can be predicted, and so that anyone can make a decision on his/her act. However, all the elements of a punishment law should be defined as a simple descriptive concept by clarifying the elements of a punishment law. However, even if a person has a sound common sense and ordinary legal sentiment through a method of ordinary interpretation, if he/she uses a concept that requires the complementary interpretation of a judge somewhat broad, it does not contravene the clarity of the punishment law required by the Constitution if he/she has a sound common sense and ordinary legal sentiment, and if he/she uses it to know the protected legal interest of the punishment law in question, acts prohibited by the law in question, and the kind and degree of punishment. And the existence of predictability of the punishment law should not be determined as only the specific provision in question, but also be determined in an organic and systematic manner by considering the whole relevant legal provisions in accordance with the nature of each applicable law.

In a case where the general, uncertain or uncertain concept is used, it should be examined individually, depending on whether it can be reasonably interpreted in consideration of the legislative purpose of the relevant Act and other provisions of the relevant Act, or the mutual relationship with other provisions (the Constitutional Court).

See Supreme Court Order 2014HunBa266 Decided October 21, 2015

2) Determination

A) Article 48 of the Information and Communications Network Act provides for the prohibition of infringing acts that may destroy the stability of information and communications networks and the reliability of information. In the event of violations of the above provision, the above provision is subject to criminal punishment, and thus, a crime constituent provision that commits the act of infringing information and communications networks is a requisite provision for the crime. Therefore, the above

B) Stability of information and communications networks means a state in which information and communications networks can play a role at a physical and functional level. The reliability of information means a state in which information collected, processed, stored, searched, transmitted or received through an information and communications network contains facts or truth in terms of content. Article 48 of the Information and Communications Network Act provides three separate actions that may undermine the stability of information and communications networks and the reliability of information. The first is intrusion upon an information and communications network without access authority or beyond the authorized access authority, so-called hacking (Paragraph 1), and the second is the act of transmitting or spreading an information and communications system, data, program, program, etc., which is likely to damage, alter, forge, or interfere with its operation without justifiable grounds (Paragraph 2), third is the act of causing interference with the information and communications network by sending a large quantity of signals or data for the purpose of hindering the stable operation of the information and communications network, or the act of infringing or destroying data system without access authority, or the act of refusing so-called “data operation” means an act of causing interference to the information and communications system, etc.

E) In full view of the legislative intent of Article 48 of the Information and Communications Network Act, the legislative structure, the content of the regulation, and the literal meaning of the “operation” and the “disorder”, a program that may interfere with operation” under Article 48(2) of the Information and Communications Network Act refers to a program that does not damage, destroy, alter, or impair information and communications systems, data, programs, etc., and prevents the proper operation of information and communications systems, data, programs, etc. so that the trust of information can be destroyed. It can be easily predicted that the program regulated by the “program that may interfere with operation” under Article 48(2) of the Information and Communications Network Act does not violate the principle of no punishment without law, and that part of the Defendants and defense counsel’s assertion is rejected.

B. Whether the freedom of occupation or the general right to freedom of action is infringed

Considering the following aspects, the "Programming that could interfere with operation" in Article 48(2) of the Information and Communications Network Act complies with the principle of excessive prohibition, which is the constitutional limit of the legislation restricting fundamental rights.

This part of the defendants and defense counsel is not accepted, since they do not infringe on the freedom of occupation or the general freedom of action.

(1) In light of the rapid development speed of information and communications technology, only a program that damages, destroys, alters, or forges information and communications systems, data, programs, etc. shall be regulated in accordance with the provisions of Article 48(2) of the Information and Communications Network Act, considering the fact that it is difficult to effectively cope with new types of programs that may destroy the stability of information and communications networks and the reliability of information, the legislative purpose of which is to be justified.

(2) The suitability of means is recognized by criminal punishment for a program that prevents the function of an information and communications system, data, program, etc. from properly operating, as it ensures the stability of information and communications network and the trust of information related thereto.

(3) As seen earlier, “A program that may interfere with operation” under Article 48(2) of the Information and Communications Network Act refers to a program that does not damage, destroy, alter, or forge an information and communications system, data, program, etc. and prevents the proper operation of the function of an information and communications system, data, program, etc. related to information and communications network so that the stability of information and communications network and the trust of information can be destroyed. As such, the scope of regulation is limited and the minimum degree of infringement is recognized only when such program is delivered or circulated without justifiable grounds, not completely

(4) The stability of information and communications networks and the reliability of information protected by regulating a program that prevents the normal operation of functions, such as an information and communications system, data, program, etc., compared to the benefits infringed on by the program developer, shall be more serious, thus meeting the balance of legal interests.

3. Comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by the court as to whether each of the instant programs constitutes a program that could interfere with operation, the Defendants and the defense counsel are not allowed to accept this part of the assertion given that it may interfere with the operation of the information and communications system, data, or program related to the NAV’s information and communications network.

(1) An online platform operator, such as NVV, is an advertising-based medium platform that mainly receives advertising fees from users for mediating advertisements through free services between a potential customer group and an advertiser. Therefore, as a result, the reliability of the content shared within the NV’s information and communications network may be created by drawing up profits from users, in which the reliability of the content shared within the NVV’s information and communications network is guaranteed.

Accordingly, NAV has a device that can block mechanical access in order to ensure that NAVs, tables, SNS services, BanV services, etc. provided free of charge are reflected by actual users' access and to prevent mechanical manipulation.

③ However, each of the instant programs does not operate properly the function of the mechanical access blocking program prepared in the NAV servers, such as bypassing the NAV devices or by using the NAV mobiles, by securing a number of IPs and modifying IPs, and by designing access to the NAV servers.

④ Each of the instant programs distort the content provided by NAVs by accessing the NV servers, such as attempting to change the order of search results or allowing access to a large number of NAPCs, etc.

4. Whether it constitutes delivery or distribution;

In light of the legislative intent of Article 48(2) of the Information and Communications Network Act and the literal meaning of “delivery”, there is no ground to limit the “delivery” of Article 48(2) of the Information and Communications Network Act only to the case where an actor directly inputs a malicious program to an information and communications system, data, program, etc., and thus, the Defendants and defense counsel do not accept this part of the assertion (the Defendants and defense counsel argued that the act of selling each of the instant programs by the Defendants does not constitute a “distribution”, but there is no room to further determine this part of the assertion as to this part of the assertion, since the Defendants sold each of the instant programs to a specific person, they do not constitute a distribution that means the movement of a malicious program

Judge Lee Jin-hun