Defendant 1 and seven others

Defendant 2 and five others and the prosecutor

Freeboard Kim Hero (prosecutions) and the highest court (public trial)

Attorney Kang Chang-won et al.

Gwangju District Court Decision 2014Dadan2754 Decided November 20, 2014

The part of the judgment of the court below against Defendant 3 shall be reversed.

Defendant 3 shall be punished by a fine of three million won.

When Defendant 3 fails to pay the above fine, Defendant 3 shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

Defendant 3 shall order the provisional payment of an amount equivalent to the above fine.

Defendant 2 (Counter-board: Nonindicted 2), Defendant 4, Defendant 5, Defendant 6, Defendant 8 (Counter-board: Defendant) and prosecutor’s appeal are dismissed, respectively.

1. Summary of grounds for appeal;

A. Defendants 2, 3, 4, and 5

The sentence of the lower court (each fine of three million won) is too unreasonable.

B. Defendant 6

1) misunderstanding of facts and misapprehension of legal principles

The defendant requested not only private taxi articles that purchased vehicles but also private taxi articles that do not know about, but also information on members with the intent to assist in AS is not obtained for profit or for illegal purpose.

2) Unreasonable sentencing

The punishment of the lower court (a fine of three million won) is too unreasonable.

C. Defendant 8

1) Legal principles

Article 71 Subparag. 5 of the Personal Information Protection Act is only a provision that punishs a person who receives personal information directly from him/her despite being aware of the fact that a person who has managed or processed personal information divulges or provides such information by unlawful means, etc., and does not punish a person who receives personal information again from a person who has received such personal information by unlawful means. Since Defendant 2 received personal information that he/she received from Defendant 1 (Person 1) through Defendant 2, it cannot be punished under the said provision.

2) Unreasonable sentencing

The punishment of the lower court (a fine of three million won) is too unreasonable.

(d) A prosecutor;

The lower court’s sentence against Defendant 1, Defendant 6, and Defendant 7 (Defendant 1: 1 year of imprisonment, 2 years of suspended sentence, Defendant 6, and Defendant 7: each of the fines of KRW 3 million) is unreasonable, because it is too unfasible.

2. Determination

A. Ex officio determination

Prior to the judgment on the grounds for appeal, Defendant 3’s ex officio examined the following facts. According to the records, on January 17, 2014, Defendant 3’s sentence of imprisonment with prison labor for occupational embezzlement, three years of suspension of execution, community service work, 160 hours at the Gwangju District Court, and the judgment became final and conclusive on December 24, 2014. Following the final and conclusive judgment, Defendant 3’s instant crime and the crime of occupational embezzlement are concurrent crimes under the latter part of Article 37 of the Criminal Act. Nevertheless, the part of the judgment of the lower court, which omitted application of the latter part of Articles 37 and 39(1) of the Criminal Act with respect to Defendant 3’s instant crime, cannot be maintained as it is.

B. As to Defendant 6’s assertion of mistake and misapprehension of legal principles

The court below acknowledged the following circumstances based on evidence duly adopted and investigated by the court below, i.e., the defendant is the head of the business team at the sales place operated by △△△ Motor, and the defendant is not in charge of AS, and the defendant is not in charge of AS. The defendant alleged that he received the personal information of the members for AS. However, the members who purchased the taxi from the defendant were already aware of the personal information of the defendant, and the members who requested AS could not directly ask the type of the car, etc., so it is difficult for the defendant to be deemed to have received the personal information for AS only, and ③ the defendant demanded the personal information of the members first, and all the personal information of the members who did not have △△△ Motor. Accordingly, the defendant received the personal information for profit-making purpose.

C. As to Defendant 8’s assertion of misapprehension of the legal principle

Article 71 Subparag. 5 of the Personal Information Protection Act provides that “A person who divulges personal information he/she has become aware of in the course of performing his/her duties or provides another person with personal information without authority in violation of Article 59 subparag. 2, and a person who knowingly receives such personal information for profit or for an illegal purpose” shall be punished. Article 59 Subparag. 2 of the same Act provides that “A person who manages or has managed personal information shall not divulge personal information he/she has become aware of in the course of performing his/

Article 71 Subparag. 5 of the Personal Information Protection Act does not restrict the receipt of personal information from a person who received such information, but only requires a person who received such information to know that he/she either disclosed or provided such information to another person without authority. Therefore, even if Defendant 1 was not directly provided with such information, insofar as Defendant 1 was aware of the fact that the information was provided to another person without authority, it constitutes a constituent element of Article 71 Subparag. 5 of the Personal Information Protection Act. Accordingly, Defendant 8’s assertion of misapprehension of the legal doctrine is without merit.

D. As to the assertion of unfair sentencing on Defendant 2, Defendant 4, Defendant 5, Defendant 6, Defendant 8, Defendant 1, Defendant 6, and Defendant 7 by the Prosecutor

In full view of the following circumstances: (a) Defendant 1’s personal information was leaked to the remaining Defendants; (b) Defendant 1 obtained the personal information of the union members at the time of retirement from ○○○ Military Association and leaked one year after the date of retirement; (c) Defendant 1 did not obtain personal benefits while providing personal information; (d) Defendant 6 and Defendant 4 did not have any history of criminal punishment; and (e) favorable sentencing factors such as the fact that Defendant 1, Defendant 2, Defendant 5, Defendant 7, and Defendant 8 did not have any history of criminal punishment for the same kind of crime; and (e) other factors, including the Defendants’ age, character and conduct, environment, motive, means, and consequence of the crime; and (e) the conditions of sentencing specified in the instant records and arguments, including the circumstances after the crime, etc., the lower court’s punishment against the Defendants is too heavy or unreasonable. Therefore, the allegation of unfair sentencing is without merit.

3. Conclusion

Therefore, since the part of the judgment of the court below on the defendant 3 as to the above grounds for reversal on the grounds of ex officio, it is reversed under Article 364(2) of the Criminal Procedure Act without examining the judgment on the assertion on unfair sentencing, and it is again decided as follows through the pleading. Since the appeal by the defendant 2, 4, 5, 6, 8, and the prosecutor is without merit, it is dismissed under Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

The summary of the facts charged by this court and the evidence related thereto are as shown in the first head of the judgment of the court below, "The defendant 3 was sentenced on January 17, 2014 to one year of imprisonment, three years of suspended execution, and 160 hours of community service, and the judgment became final and conclusive on December 24, 2014" in the first head of the judgment of the court below. The summary of the evidence is as stated in the corresponding column of the judgment of the court below, except for the addition of "1. judgment: each judgment: the court's judgment" in the summary of the evidence. Thus, it is cited as it is in accordance with Article 3

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

Article 71 Subparag. 5 and Article 59 Subparag. 2 of the Personal Information Protection Act (Selection of Fine)

1. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The elements of unfavorable sentencing, such as the fact that the defendant has acquired personal information about 4,800 members and actively demanded the defendant 1 to forward the list of members, and the elements of favorable sentencing, such as the fact that the defendant is against his/her mistake, the fact that there is no record of criminal punishment for the same kind of crime, and other factors that form the conditions of sentencing as shown in the records and arguments of this case, such as the defendant's age, character and conduct, environment, motive, means and consequence of the crime, and the circumstances after the crime, and the case that a judgment has become final and conclusive simultaneously with the crime of occupational embezzlement

Judges Man-Il-Il-Il-Il-Il-Il-Il-Il-