[1] The scope of “employee of a corporation” in joint penal provisions under Article 75 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and the standard for determining whether the “corporation” was negligent in exercising due care or supervision

[2] The case affirming the judgment below convicting Defendant Company on the ground that Defendant Company’s “employee or other employee” constituted “employee or other employee,” and that Defendant Company did not properly perform its duty of due care, management, and supervision necessary for the prevention of violation, in a case where Defendant Company A’s debt collectors infringed upon the National Health Insurance Corporation’s website without authority and infringed another’s secret processed and stored through information and communications networks, and thus was prosecuted for violation of the former Act on Promotion of Information and Communications Network Utilization and Information Protection

[3] Whether the addition of exemption provisions to a corporation due to the amendment of joint penal provisions of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. constitutes “where an act does not constitute a crime due to a change of law after the crime, or where punishment is more severe than that of the former Act” (affirmative)

[1] Article 75 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. / [2] Articles 48 (1) and 49 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 9119, Jun. 13, 2008); Article 62 subparagraph 6 (see current Article 71 subparagraph 11), Article 63 (1) 1 (see current Article 72 (1) 1), Article 66 (see current Article 75); Article 75 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. / [3] Article 1 (2) of the Criminal Act; Article 48 (1) and Article 49 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 8289, Jan. 26, 2007; Article 710 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (see current Article 3075)

[1] [3] Supreme Court Decision 2010Do12069 Decided December 9, 2010 / [1] Supreme Court Decision 2003Do4966 Decided February 24, 2006 (Gong2006Sang, 547) Supreme Court Decision 2008Do11921 Decided April 23, 2009 (Gong2009Sang, 7955), Supreme Court Decision 2009Do9624 Decided April 15, 201, Supreme Court Decision 2009Do5516 Decided July 14, 2011

Defendant corporation

Defendant

Law Firm Democratic Law, Attorneys Lee Pon-soo et al.

Suwon District Court Decision 2010No5329 decided August 11, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 75 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. provides that "where a representative of a corporation, or an agent, employee or other servant of a corporation or individual commits an offence under Articles 71 through 73 or 74 (1) in connection with the business of the corporation or individual, not only shall such offender be punished, but also the corporation or individual shall be punished by a fine under the relevant provisions: Provided, That this shall not apply where such corporation or individual has not been negligent in giving due attention and supervision concerning the relevant duties to prevent such offence;

The purport of the joint penal provision is to ensure effectiveness of the penal provision through the punishment of business negligence, such as a corporation. In this context, an employee of a corporation includes not only a person who enters into and works for a corporation and a regular employment contract, but also a person who is under the control and supervision of the corporation in the course of directly or indirectly performing the corporation's business (see Supreme Court Decisions 2003Do4966, Feb. 24, 2006; 2008Do1921, Apr. 23, 2009). In this case, a corporation shall be punished due to negligence of the corporation in relation to the business of the violation. Whether the corporation has neglected to exercise due care or supervision in a specific case shall be determined by comprehensively taking into account all the circumstances related to the violation in question, namely, the legislative purport of the relevant Act, the degree of infringement of legal interests anticipated to violate the penal provision, the purpose of establishing joint penal provision concerning the violation, the degree of damage or result actually caused by the violation, the possibility of business operation and supervision of the corporation, etc.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted and investigated by the court of first instance, the court below determined that the debt collection center of this case constitutes "employee or other employee" of the defendant, and that the defendant failed to properly perform its duty of due care, management, and supervision necessary to prevent any violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. by the debt collection center of this case, and that the defendant was guilty of the facts charged of this case. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the burden of proof and degree of proof under the proviso of Article 75 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and failing

2. Meanwhile, Article 66 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8289, Jan. 26, 2007; Act No. 8289, Jul. 27, 2007) does not provide for exemption from liability to a corporation. Since the Act was amended by Act No. 8778, Dec. 21, 2007, the said joint penal provision was replaced by Article 75, again after it was replaced by Act No. 10138, Mar. 17, 2010; the proviso to the same Article added a provision not to punish a corporation, if the corporation did not neglect to exercise due care and supervision over the relevant business in order to prevent the violation of its agents, employees, and other employees, this provision constitutes a case where the act did not constitute a crime due to the amendment of the Act after the crime, or where punishment was heavier than that of the former Act. Thus, the Defendant’s application of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.

The court below's finding the charged facts of this case guilty by applying joint penal provisions under Article 75 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. as amended to the charged facts of this case is just in accordance with the above legal principles, and there is no error in violation of the principle of equity or equality under the Constitution

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)