[1] The meaning of " deceptive scheme" in the crime of interference with business by deceptive means

[2] In a case where the defendant received a modified game program that can enhance the users' identity or ability of the mobile game produced by the victim game company from an overseas Internet site, and then modified the game program so that the provision of the above game program can be seen on the screen when the game program is implemented, and then charged with interfering with the normal business of the victim game company by fraudulent means by posting and distributing the game program modified as above on the bulletin board of the mobile display sharing site, the case holding that the crime of interference with business by fraudulent means is not established on the sole basis of the fact that the defendant posted and distributed the altered game program without entirely specifying how the game program was implemented by any method and without specifying whether the game program was connected to the game server

[1] Article 314(1) of the Criminal Act / [2] Article 314(1) of the Criminal Act, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2009Do8506 Decided March 25, 2010 (Gong2010Sang, 841) Supreme Court Decision 2013Do8734 Decided December 24, 2014

Defendant

Defendant

Attorney Kim Do-ap

Daejeon District Court Decision 2016No555 Decided August 31, 2016

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. Of the facts charged in the instant case, the summary of interference with the business was as follows: “After receiving an altered game program that the Defendant is able to raise the user’s level or ability of the mobile game that was produced by the victim game company, the Defendant modified the game program so that the Defendant would provide the above game program on screen screen at the time of implementation of the game program, using the mobile display modification program, and then posted and distributed the altered game program so that the Defendant could have access to the person directly opened on the bulletin board of the mobile display case sharing site, thereby hindering the victim game company’s normal business operation by deceptive means.”

2. Based on its stated reasoning, the lower court upheld the first instance judgment convicting the Defendant of the facts charged, on the ground that the act of this case where the Defendant posted and distributed the game program altered was conducted for the purpose of causing the mistake, awareness, or site of the victim game companies, and constitutes a deceptive scheme, and that such act by the Defendant was at risk of causing interference with the normal business of the victim game companies.

3. However, the lower court’s determination is difficult to accept for the following reasons.

(1) In the crime of interference with business through fraudulent means under Article 314(1) of the Criminal Act, the term “defensive means that an actor causes mistake, mistake, or land to the other party in order to achieve the purpose of the act (see Supreme Court Decision 2013Do8734, Dec. 24, 2014).

(2) In a case where a game user installs a game program altered as stated in the facts charged in the instant case on his own mobile device and executes it and connects the game server, the game company is unable to distinguish the game user who connects to the server by installing and implementing the said altered game program from the game user who connects to the server by installing and implementing the normal game program. Thus, the game user’s crime of interference with business by fraudulent means is established only when the game user connects the server by installing and implementing the altered game program.

However, the Defendant’s act stated in the facts charged of this case as a obstruction of business was that the Defendant posted the game program altered on the bulletin board of the mobile display sharing site that he opened, and made it available for access to it. The Defendant directly connected the game server by implementing the altered game program, or in collusion with the game users who downloaded the altered game program at the above public bulletin board, and did not directly connect the game server by executing the altered game program. As such, without entirely specifying how the Defendant’s act of running the game program altered by any means and distributing the game server, it is difficult to view that the act of the Defendant’s act of posting and distributing the altered game program by means such as the facts charged of this case does not interfere with business by causing mistake, mistake, or a site for the game company that produced the game program.

Therefore, the crime of interference with business by fraudulent means cannot be deemed to be established on the sole basis of the fact that the defendant posted and distributed the altered game program in the same manner as the facts charged in this case, in a case where it is acknowledged that the game user and the defendant who connected the game server are in a competitive relationship by downloading it at the public bulletin board of the sharing site where the defendant posted the altered game program as above and actually carried out it.

Nevertheless, solely based on its stated reasoning, the lower court found the Defendant guilty of interference with business among the facts charged in the instant case. In so determining, the lower court erred by misapprehending the legal doctrine on “defluence” and “disorder”

(3) Meanwhile, the lower court rendered a single sentence on the grounds that the above part of the facts charged and the remainder of the facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, should also reverse not only the above part of the facts charged but also the remainder

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)