Defendant 1 and five others

Both parties

Main Jins (Lawsuits) and Kim Byung-sicks (Trial)

Law Firm, Pacific, Attorney Kim Han-mo

Seoul Western District Court Decision 2011Gohap1406 Decided December 14, 2011

All appeals filed by the Defendants and the prosecutor against the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Summary of the defendants' grounds for appeal

1) Summary of the grounds for appeal by Defendant 1 corporation

① Although the employees of Defendant 1 Company did not interfere with the normal operation of the Sk Br Ba information and communications system without impeding the normal operation of the information and communications system, they did not constitute “influence” as stipulated in Article 48 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act), they convicted Defendant 1 Company of violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (information and communications network infringement) and convicted Defendant 1 Company of the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (information and communications network infringement). ② Defendant 1 Company was punished by a fine pursuant to the joint penal provisions of Article 75 of the Information and Communications Network Act, which did not neglect due care and supervision to prevent the employees’ violation, and there was an error of law by misunderstanding the facts, misunderstanding the legal principles, and affecting each judgment

2) Summary of the grounds for appeal by Defendant 2, 3, 4, 5, and 6

① Although Defendant 4, 5, and 6 did not have the purpose of crime at the time of entering the communication equipment room, the lower court found the Defendants guilty of violation of the Punishment of Violences, etc. Act (joint residence intrusion) and intrusion on a structure, and found the Defendants 2, 3, 4, 5, and 6 guilty of the charges. ② Defendant 2, 3, 4, 5, and 6 did not interfere with the normal operation of the SK broadband Information and Communications System, which is an act that is likely to cause harm to the stability and reliability of the network as provided in Article 48 of the Information and Communications Network Act, and thereby did not constitute “influence”, the lower court found the Defendants guilty of violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection (information and Communications Network Infringement), thereby adversely affecting the conclusion of each judgment. ③ In addition, the lower court erred by misapprehending the legal doctrine on the elements of crime, thereby adversely affecting each judgment.

B. Summary of prosecutor's grounds for appeal

① The lower court acquitted the Defendants on the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. due to the collection of personal information. The lower court erred by misapprehending the legal doctrine on the interpretation of penal provisions, thereby adversely affecting the conclusion of the judgment. ② The sentence imposed on the remaining Defendants except Defendant 1 corporation is unreasonable.

2. Judgment on the misunderstanding of facts and misapprehension of legal principles by the Defendants

(a) Violation of the Punishment of Violences, etc. Act (joint residence and intrusion) and intrusion on a structure;

In full view of the evidence duly adopted and examined at the court below, at around 15:10 on April 7, 2010, Defendant 4 and 5 entered the communication equipment room of apartment (title 2 omitted), connected the phone number of the disabled to the communication equipment room of the SKB network, and collected 41 households successively for 28 minutes by linking the phone number of the SKB network with the mobile phone number of the defendant 4 to the above mobile phone number of the defendant 4, and then, the above defendants collected the phone number of 41 minutes in order of the method that the telephone number of the subscriber is connected to the above mobile phone number of the above mobile phone number. Since the above defendants 4 and 5 entered the communication equipment room of the apartment (title 3 omitted) apartment and the communication equipment room of the apartment (title 4 omitted), even if the defendant 4 and 5 entered the above apartment unit with the purpose of arranging the apartment unit and training, it cannot be seen that the above act of collecting the phone number of the above apartment unit for the purpose of collecting it.

In addition, in full view of the evidence duly adopted and examined at the court below, at around 15:28 on May 7, 2010, Defendant 6 entered the communication equipment room of the apartment (title 9 omitted) and connected the phone number of the disabled to the communication network room of the SKB World and then collecting the phone number of 40 households for 61 minutes in order by connecting the phone number of the subscriber to the above mobile phone number of the defendant 4 by telephone network. Thus, even if the above apartment management office requested the above defendant to arrange the line, Defendant 6 collected a considerable telephone number for a short time while collecting personal information using the phone number which is no relation with the moving operation of the subscriber, it cannot be seen that the crime was committed after entering the communication equipment room. Accordingly, Defendant 6 can be recognized as having sufficiently acknowledged the fact that the phone number of the above apartment unit was connected to the communication equipment of the telecommunication room by using the communication equipment of the victim.

Therefore, the above defendants' assertion of mistake is without merit.

B. Violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection

Article 48(1) of the Information and Communications Network Act provides that “any person shall not intrude into the information and communications network beyond the authorized access authority or beyond the allowed access authority.” In a case where a person who does not have the legitimate access authority from the service provider connects the information and communications network in an unlawful manner, it constitutes an act of intrusion into the information and communications network without the access authority as provided by Article 48(1) of the Information and Communications Network Act (see Supreme Court Decision 2005Do870, Nov. 25, 2005). Therefore, the remaining Defendants, who are employees of Defendant 1 corporation, do not receive a legitimate access authority from the SKB World, which is the service provider, from the SKB World. Accordingly, the Defendants’ act of accessing the information and communications network by unlawful means of connecting the phone of the above Defendants with the communication distribution network using the phone for disabled treatment, shall be deemed to constitute an act of intrusion into the information and communications network without a legitimate access authority as provided by Article 48(1) of the Information and Communications Network Act, and the Defendants’s assertion that does not constitute “inf.”

C. Application of joint penal provisions

In light of the principle of self-responsibility of punishment, it is reasonable to deem that the above joint penal provision applies only when a corporation neglects its duty of due care or management and supervision in relation to the business in which the violation occurred. In specific cases, the issue of whether a corporation neglected its duty of due care and supervision shall be determined by comprehensively taking into account all the circumstances related to the violation in question, namely, the legislative intent of the relevant law, the degree of infringement of legal interests anticipated to violate the penal provisions, the purport of preparing joint penal provisions concerning the relevant violation, as well as the specific form of the violation and the degree of damage or result actually caused thereby, the business size of the corporation, the possibility of supervision or supervision over the offender, and the measures actually taken by the corporation to prevent the violation (see Supreme Court Decision 2009Do6968, Jul. 8, 2010).

According to the records, Defendant 1 corporation is able to provide its employees with education for the protection of personal information and the prevention of infringement, establish the Code of Ethics Action Guidelines around 2007, and recognize the fact that it has been given the employees a vow of the protection of information and the code of ethics management. However, in full view of the evidence duly adopted and examined at the court below, the remaining Defendants, the employees of Defendant 1 corporation, were working in Seoul, Ulsan, Gwangju, and Seocheon branch, and there is no special relation among the Defendants working in other branch. However, all of the Defendants did not have any special relation. However, it was hard to view that it was used for the business of Defendant 1 corporation in competition with the KSB broadband, and it was hard to view that Defendant 1 corporation, the direct principal agent of the Information and Communications Network Act, could have sufficiently predicted and supervised the employees' violation of the Act, and thus, Defendant 1 corporation’s duty of care and supervision over the pertinent employees’ violation of Article 75 of the Act on the Promotion of Information and Communications Network and Communications Network.

3. Judgment on the misapprehension of the legal principle of prosecutor

A. Summary of the facts charged and the judgment of the court below

The summary of the facts charged against the violation of Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. due to the collection of personal information by the prosecutor is as shown

As to this part of the facts charged, the court below found Defendant 1’s employees to be “user” under Article 22(1) of the Information and Communications Network Act as “user of information and communications services provided by a provider of information and communications services,” and found Defendant 1 to be a user of information and communications services provided by a provider of information and communications services. However, there is no other evidence to acknowledge it, and thus, the Defendants cannot be deemed to constitute “user” subject to the Information and Communications Network Act. Accordingly, even if the Defendants collected their phone numbers without their consent, they acquitted the Defendants on the ground that they did not violate Article 22(1) of the Information and Communications Network Act.

B. Judgment of the court below on the assertion of legal principles

Article 22(1) main text of the Information and Communications Network Act provides that "a provider of information and communications services shall inform users of all of the following matters and obtain consent from users, and a person who collects personal information without consent from users in violation of Article 71(1) of the same Act shall be punished pursuant to Article 71 of the same Act. However, in interpreting Article 22(1) of the same Act, where a provider of information and communications services collects personal information from users to receive the provision of the service, it shall be deemed that the above provision applies to the provider of information and communications services, and even according to Article 2(1)4 of the same Act, "user" is explicitly defined as "the person using information and communications services provided by a provider of information and communications services." Therefore, the court below held that it is difficult to recognize the fact that the defendants collected by the prosecutor alone based on the evidence submitted by the prosecutor under the premise of such legal interpretation is using information and communications services provided by the defendant 1 corporation, and there is no other evidence to acknowledge it. Thus, the judgment below is justifiable, and the prosecutor's assertion contrary to this is justified.

4. Determination on the assertion of unreasonable sentencing by Defendants and prosecutors

On the other hand, the Defendants committed the instant crime in order to collect the phone number of the subscriber, which is the personal information in competition, and the nature of the relevant crime is not good, and the personal information collected from the instant crime is reasonable. In particular, Defendant 1 corporation is considered to have been negligent in actively preventing such crime under the Information and Communications Network Act, and thus, it is deemed that Defendant 2, 3, 4, 5, and 6 had no record of crime or less, and it seems that Defendant 1 corporation committed the instant crime for business activities of Defendant 1 corporation, not personal interest. In full view of various sentencing conditions, such as character, environment, motive and circumstance of the crime, and circumstances after the crime, etc., the punishment imposed by the lower court is deemed reasonable, and it is not recognized that the punishment imposed by the Defendants is heavy or unreasonable. Therefore, the Defendant and prosecutor’s assertion of unfair sentencing is without merit.

5. Conclusion

Therefore, the appeal by the defendants and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Sung-chul (Presiding Judge)