Defendant

Defendant

Hong-hee

Attorneys Kwon Young-young et al.

Daejeon District Court Decision 2004Ma236 delivered on June 29, 2004

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of the facts charged

A. Main facts charged

(1) On December 13, 200, the Defendant worked as a person in charge of operating and managing various servers, such as computer systems within the university, web (DNS), e-mail, city affairs administration, etc. at the Information Support Center of Nonindicted University located in the university from 200 to 3rd police officers: From 200, the Defendant was ordered to change the above university’s office and information processing center’s access to the above university’s website, and the head of the branch office of the university, which was issued to the above university around February 10, 204. From around November 13, 2003, the head of the first university’s office and the information processing center’s access to the above university’s computer server and the above information processing center’s access to the above university’s website, which had been interfered with the above university’s operation and management of the information processing center’s computer system. However, the Defendant’s access to the above university’s website and the above information processing center’s access to the information processing center’s website, etc.

(2) At around 20:10 on February 21, 2004, when Nonindicted 4 was removed from the computer support center and the records are stored in the temporary trade union office located in the above university, it would obstruct the entire computer network unless the system manager connects the security equipment server to the computer network and fails to delete and manage the file, and connects the franchise (LN) network installed temporarily in the above office to the Nowonbuk-do. After connecting the computer network (IP address omitted) with the computer information processing unit to enter an improper order on the change of the failure, preventing the above university’s personnel in charge from accessing the above security equipment server, deletinging the computer system from accessing the above computer network and removing and managing the loaded log, thereby hindering the above university’s school affairs and school affairs, administrative affairs, etc.

B. Preliminary charges

(1) In the manner described in subparagraph (1) of the above paragraph (1) of the same Article, it interferes with the management of the homepage of the above university by a deceptive scheme and its incidental university entry, school administration guidance, etc., by arbitrarily changing the ID and plaque of the homepage manager without authority;

(2) In the manner described in paragraph (2) of the above A, the above university’s computer system and university entry incidental thereto were obstructed by a deceptive scheme by arbitrarily changing the failure without authority and allowing a person in charge of the above university’s affairs to delete and manage the access to the above security equipment server and the loaded log records.

2. The judgment of the court below

A. Part of the facts charged A. (1)

The lower court found the Defendant guilty on this part of the charges by regarding the act of changing the ID and password of the manager of the homepage of the above university in accordance with the evidence in its holding.

B. Facts charged A. (2) part

The court below found the defendant guilty on this part of the facts charged by the witness non-indicted 5 and 6 of the court below, the third party interrogation protocol of the court below as to non-indicted 2 prepared by the judicial police assistant, the prosecutor's investigation report, etc., and found the defendant guilty on the ground that the non-indicted 2's third party interrogation protocol of the above non-indicted 2 as to witness witness's witness's witness witness's third party interrogation protocol of the court below as to February 21, 2004 was adopted as reliable evidence, and there is no consistency in the circumstance of reversal, and the above witness's statement is not consistent with the contents that only the non-indicted 2 knows about the time, place, method, etc. of the crime, and it seems difficult for the witness to make statements unless the witness witness was a witness of the crime. The court below found the defendant guilty on the ground that the third party interrogation protocol of the above non-indicted 2's suspect interrogation protocol was adopted as a conclusive conviction evidence.

3. Summary of grounds for appeal by the defendant;

A. Legal principles, mistake of facts, and violation of the rules of evidence

(1) Facts charged A. (1) part

The defendant has the authority to change the password, etc. of the above university homepage while working as a person in charge of the management of various servers and program operation at the above university information support center. Thus, the above university's order of transfer issued on February 10, 2004 against the defendant is illegal or unjust and invalid, and even if it is valid, the defendant had the authority of the above manager until he takes over the business affairs to his successor after the above issuance. Thus, the defendant's act of not having authority to change the password, etc. of the above homepage does not constitute a constituent element for interference with business affairs such as computer, etc.

(2) Facts charged A. (2) part

Nonindicted 5 and 6’s statements made by the lower court as evidence of guilt as to this part of the facts charged are not reliable, such as that Nonindicted 2’s statements are adjusted in compliance with the contents of the statement after Nonindicted 2 stated in the third interrogation protocol of the police, and Nonindicted 5’s third interrogation protocol as to Nonindicted 2 prepared by the police was involved in Nonindicted 2’s statements at the time of its preparation, and Nonindicted 2 consistently stated to the effect that, in all statements except the third interrogation protocol of the interrogation of the interrogation of the interrogation of the interrogation of the interrogation of the third party, the Defendant did not have access to the security equipment server and change the password. Accordingly, the third interrogation protocol of the interrogation of the third party as

(3) Nevertheless, the court below found all the defendants guilty on the facts charged in this case. The judgment below erred by misapprehending the legal principles on interference with the business of computer, etc. and by misunderstanding facts against the rules of evidence, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The sentence of the court below against the defendant is too unreasonable.

4. The judgment of this Court

The lower court convicted all of the facts charged of the instant case on the ground that the Defendant’s act of this case constitutes a crime of interference with the business of interference with computer, etc. on the grounds as seen above, but such judgment by the lower court is difficult to accept

Furthermore, the prosecutor, ex officio, applies for the approval of changes in indictment at the sixth trial day of the trial, and since this court permitted it and changed the facts charged legally, the judgment of the court below which is the subject of the judgment prior to the amendment of indictment cannot be maintained any more. Thus, the judgment of the court below should also be made as to the changed preliminary facts.

A. As to paragraphs (1) and (b)-1 of the facts charged

Article 314(2) of the Criminal Act provides that “a person who interferes with another’s business by destroying an information processing unit, such as a computer, or a special media record, such as electronic records, or by inputting a false information or improper order, or by causing interference with data processing through any other means.” Here, “other means” includes both hardware and software, which can automatically calculate or process data, and “other means” means harmful acts which directly affect the operation of the information processing unit and make it impossible to function in compliance with the purpose of use or to have it function different from the purpose of use. In order for the crime to be established, the above harmful act requires that the data processing unit practically interferes with the purpose of use, such as failure to function in line with the purpose of use or making it function different from the purpose of use.

Examining the above legal principles in cases where a system manager fails to inform his/her identity number to his/her successor, the password of the computer is merely a security means used by the system manager to access the system. Thus, the mere fact that the system manager does not simply notify the identification number of the computer does not directly affect the operation of the data processing unit and it cannot be deemed that the computer does not function in compliance with the purpose of its use or that the computer does not function differently from the purpose of its use, and thus, it cannot be viewed as interference with the business of the computer, etc. under Article 314(2) of the Criminal Act (see Supreme Court Decision 2002Do631, Jul. 9, 2004).

On February 10, 204, the Defendant issued a complaint to the transfer order of the above university on February 10, 200, and acknowledged that the above university union had no intention to obstruct the business of the above university at around 09:32 on February 12, 200, and did not inform his successor. According to the evidence duly adopted and examined by the court below, it was difficult for a new system manager to manage the above university homepage server, and there was no evidence to recognize that the above university homepage server does not function in line with the purpose of use or interfere with the purpose of use. Rather, according to records, the above password cannot be viewed as an infringement of security function of the above university manager by preventing access to the manager other than the above university homepage and its possibility, and it cannot be seen that there was no need to establish a new system in light of the legal principles as to the above computer homepage by allowing the defendant to change its password from 200 to 200 square meters.

Furthermore, Article 314 of the Criminal Code punishs a person who interferes with another's business by means of the method (e.g., spreading false facts or using other deceptive means) or force under Article 313 of the Criminal Code. The term "defensive means" refers to causing mistake, mistake, or land to the other party in order to achieve the purpose of the actor's act, and if the other party commits a wrong act or disposition thereby, it constitutes a crime of interference with business by deceptive means (see Supreme Court Decision 91Do221, Jun. 9, 192). Thus, even if the defendant temporarily obstructed the proper management of the above university's web site by changing the password from the computer, it is difficult to interpret that such change in the password is included in the meaning of deceptive scheme, which is one of the forms of acts scheduled under Article 314 of the Criminal Code. Thus, this part of the facts charged also does not constitute criminal acts, and thus, the defendant shall be acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act.

B. As to paragraphs (2) and (b)-2 of the facts charged

The defendant consistently asserts that there is no fact that he had access to the security equipment server of the above university from the investigative agency to the trial court, and there is only a statement that Nonindicted 2 in the third protocol of interrogation of Nonindicted 2 on Nonindicted 2 in the police preparation, as direct evidence of the fact that the defendant changed the above password, there is only a statement that he considered that he changed the above password.

Therefore, on March 18, 204, the non-indicted 2 stated that the witness was arrested on the non-indicted 21:25, and that the defendant was arrested on March 19, 2004, and that the defendant was arrested on the cell of the Jinjin Police Station on March 1, 2004, and that the password was changed due to access to the server of the security equipment during the second interrogation, and that it was continued during the second interrogation with Non-indicted 5 on February 21, 200, the non-indicted 2 stated that "the defendant was forced to cross-indicted 4 to cross-indicted 5's witness during the second interrogation, and that the defendant was forced to cross-indicted 20's witness at the time of the second interrogation (the address of the defendant was omitted), and that the defendant was forced to enter the existing police ID and password on the 34th examination by the non-indicted 1, 204, and that the defendant was forced to cross-indicted 24,204."

As seen above, in light of the circumstances at the time of interrogation of Nonindicted 2’s third party witness interrogation, the process of Nonindicted 2’s protocol of interrogation of Nonindicted Party 1, 2, and 3 as to Nonindicted 2, the same day, and the connection between Nonindicted 2’s personal illness and statement, etc., the circumstance is acknowledged that it is difficult to completely eliminate the possibility of Nonindicted 5’s influence during interrogation of the third party witness. At the time, Nonindicted 2 himself was suspected of being the criminal of the instant crime as indicated in the instant facts charged, and it is difficult to view that Nonindicted 2’s reversal of witness’s statement lack of consistency in light of the overall circumstances, and it is reasonable in its reasoning.

Therefore, it is difficult to believe that the statement of the third protocol of interrogation of Nonindicted Party 2 by the police is not reliable, and the remaining evidence except the witness statement by the above Nonindicted Party 2 is insufficient to acknowledge that the defendant changed the above password, and there is no other evidence to acknowledge this. Thus, this part of the facts charged should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, since this part of the facts charged is a case where there is no evidence to prove a crime, the court below found the defendant guilty of this part of the facts charged. Thus, the judgment of the court below is erroneous in the misapprehension of the rules of evidence

5. Conclusion

Therefore, the judgment of the court below shall be reversed without determining the defendant's assertion of unfair sentencing, and the following decision shall be rendered:

The summary of the facts charged in this case is not guilty for the same reasons as stated in the above reasons for reversal. In accordance with Article 325 of the Criminal Procedure Act, the defendant is not guilty.

Judges Choi Jong-he (Presiding Judge)