In a case where the Defendant was prosecuted for violating the Telecommunications Business Act on the ground that he purchased one mobile phone core (USIM) chip established in the name of an investigative agency, etc. from his name in order to avoid tracking, and opened another mobile phone in the name of another person by attaching it on his mobile phone and used it unlawfully, the case holding that the lower court erred by misapprehending the legal doctrine on the ground that the Defendant’s purchase of a refluence opened in the name of the Defendant, and then used a mobile phone activation in the name of a mobile phone so that he can receive telecommunications services, the Defendant also constitutes an illegal use of mobile phone;

In a case where the Defendant was indicted for violation of the Telecommunications Business Act on the ground that he purchased one mobile phone core device under the name of an investigative agency, etc. from Gap, and used the telecommunications service provided to another person by means of attaching it to his mobile phone numbers (hereinafter “the terminal device”), the case holding that the unlawful use of the terminal device prohibited by Article 95-2 subparagraph 2 of the Telecommunications Business Act and Article 32-4 (1) 1 (hereinafter “applicable legal provisions”) is an act of using telecommunications services under the premise that other persons’ provision of telecommunications services is prohibited by opening the terminal device under the name of another person’s name, but it is necessary to directly open the terminal device under the name of another person and use the device under the premise that other persons’ provision of telecommunications services is prohibited by using the device under the premise that other persons’ provision of telecommunications services is prohibited, the act of using the device under the premise that other persons’ provision of telecommunications services is prohibited by using the device under the premise that other persons’ provision of telecommunications services is done.

Telecommunications Business Act (Article 32-4(1)1, and Article 95-2 subparag. 2)

Defendant

Prosecutor

Attorney Lee Jae-chul

Incheon District Court Decision 2019No1928 Decided September 27, 2019

The non-guilty part of the judgment below shall be reversed, and this part of the case shall be remanded to the Incheon District Court.

The grounds of appeal are examined.

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

A. The gist of the facts charged in the instant case is that the Defendant purchased one of the mobile phone core chip (USIM) chip opened in the name of the non-indicted on January 1, 2019 from the non-indicted on his/her name in order to avoid tracking the investigation agency, etc., and used the purchased core chip by attaching it on his/her cell phone.

B. On the grounds indicated in its reasoning, the lower court reversed the first instance judgment convicting the Defendant on the ground that the mobile phone core chips do not fall under a mobile communications terminal device (hereinafter “terminal device”) stipulated under Articles 95-2 subparag. 2 and 32-4(1)1 of the Telecommunications Business Act (hereinafter “applicable Act”), and determined that this part of the facts charged constituted a time when it does not constitute a crime, and acquitted the Defendant.

2. Judgment of the Supreme Court

A. The above determination by the lower court is difficult to accept for the following reasons.

1) The unlawful use of a terminal device prohibited by the applicable provisions of this case is an act of using telecommunications services provided in the terminal device by opening a terminal device which concludes a contract for the provision of telecommunications services in another person’s name, subject to the provision of funds.

Such unlawful use of a terminal device includes not only the act of directly opening a terminal device in another person’s name but also the act of using a terminal device which is opened in another person’s name (see Supreme Court Decision 2018Do2475, Jun. 28, 2018).

2) The core (USIM) which is the weak of the “Univers Identification Mosber” is a storage device with distinctive information, such as the identity, telephone number, and fare system of the subscribers to a radio communication circuit, and is distinguishable from the terminal device in terms of concept.

3) In order to receive telecommunications services through a terminal device, such as a mobile phone, block, etc., it is necessary to open a cell phone number by concluding a contract with a telecommunications company for the provision of telecommunications services and select a fare system, and a cellular and a cellular and a cellular and a terminal device with which a terminal device can be activated in a state where the terminal device can provide telecommunications services by being installed in a cell phone and a cellular and a terminal device.

In general, such openings and openings of the current and terminal devices are carried out in the order, but in the case of the case, it is possible to open the existing system first or by inserting only the existing system into the public machine terminal device and by inserting it into the public machine terminal device, on the contrary, under the premise that the future terminal device should be opened separately.

However, under the current universal mobile communication system using the conviction, only the terminal device can not be opened without the prior opening, and against the contrary, the telecommunications service can not be used only by the prior opening of the terminal device without the opening of the terminal device. Therefore, the opening of the terminal device in the applicable provisions of law should be deemed as naturally including or premised on the opening of the basin.

4) In a case where it is activated so that the terminal device can be installed in a public machine terminal device installed in another person’s name and the terminal device can be provided with air communication services, that terminal device shall be recognized as being opened in the name of another person, the title holder of the deliberation with installed.

Therefore, an act of using a device with the depth and the terminal device, which is installed by another person's own name, after being opened the device in his own name and using it, an act of directly obtaining the depth separated from the terminal device by the defendant and installing it on another person's name, and using it through another person's name, or an act of opening the terminal device in another person's name, or an act of using the terminal device in another person's name after being transferred the conviction, and having it installed on the directly used machine terminal device in another person's name, all of which are included in the subject of punishment.

5) If so, this part of the facts charged by the Defendant, who purchased an open heart in the name of the Nonindicted Party, and installed it in the official machine mobile phone in his possession, and used it in the name of the Nonindicted Party, also constitutes an unlawful use of terminal devices prohibited by the applicable provisions of Acts.

B. Nevertheless, the lower court acquitted the Defendant of this part of the facts charged solely based on its stated reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the unlawful use of terminal devices.

3. Conclusion

Therefore, the non-guilty part of the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)