The prosecutor's appeal is dismissed.

The summary of the grounds for appeal is as follows: (a) the Defendants were aware of the fact that the contents of conversation between others are recorded, kept in a state of recording even after leaving the scene, and used the recorded contents; and (b) the intent in violation of the Protection of Communications Secrets Act is sufficient to obtain dolusor recognition that the Defendants’ act of violating the Protection of Communications Secrets Act cannot be recognized; and (c) the lower court acquitted the Defendants on the grounds that the Defendants cannot be recognized as intentional violation of the Protection of Communications Secrets, thereby adversely affecting the conclusion

Judgment

Article 3(1) of the Protection of Communications Secrets Act provides that no recording or listening to the conversations between others that are not open to the public shall be made, except as otherwise provided by the law, and Article 16(1) provides that a person who recorded or listens to the conversations between others that are not open to the public in violation of Article 3 (1) and a person who disclosed or divulges the contents of the conversations that he has learned in accordance with subparagraph 1 (Article 3(2).

The purport of prohibiting recording or listening to a conversation between others that is not open to the public is that a third party who does not participate in the conversation from the original point of view shall not record or listen to the speech between others.

Therefore, in a case where one of the three persons recorded or listened to a conversation between them, the other person’s speaking cannot be deemed as a “communication between others” under Article 3(1) of the Protection of Communications Secrets Act in relation to the recorder or listener. Therefore, the act of recording or listening to such recording or listening cannot be deemed as falling under Article 16(1) of the Protection of Communications Secrets Act.

(see, e.g., Supreme Court Decision 2006Do4981, Oct. 12, 2006). dolusent intent as a subjective element of constituent elements of crime is uncertain.