Defendant

Prosecutor

Park Ho-hoon

Gwangju District Court Decision 2005Kadan891 Decided April 7, 2006

The prosecutor's appeal is dismissed.

1. Scope of judgment on party members;

Of the facts charged in this case, the lower court rendered a verdict of not guilty on the violation of the Protection of Communications Secrets Act and sentenced the remaining part to eight months of imprisonment or two years of suspended sentence, and only the prosecutor appealeds on the grounds of misunderstanding the legal principles as to the acquittal portion. As such, the conviction portion in the lower judgment became final and conclusive as the appeal period has expired, and the prosecution on the acquittal portion is limited to the judgment of not guilty on the part of the lower court

2. Summary of grounds for appeal by a prosecutor;

The Defendant, who participated indirectly and formally in the conversation between Nonindicted Party 1 and 2, committed a violation of the above provision by deeming that recording of his conversation without the Defendant’s consent constitutes “recording of a conversation between others not open to the public” under Article 3(1) of the Protection of Communications Secrets Act. However, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment by acquitted the Defendant on the ground that the Defendant’s act did not constitute a crime

3. Determination

A. Summary of the facts charged

The summary of this part of the facts charged is that “The defendant recorded, at the office of the non-indicted 1’s (trade name omitted) located at Sinpo City on July 9, 2005, the conversation between the above non-indicted 1 and 2, using a small recording machine at one location together with the above non-indicted 1 and 2, it is thought that he would make up for his damage by disposing of 50 of the shoulder game machine owned by the non-indicted 2, the victim, in an unjust manner.”

B. The judgment of the court below and this court

The court below found the defendant not guilty on the grounds that the act of recording a conversation between others that is not open to the public does not violate Article 3 (1) of the Protection of Communications Secrets Act, since the grounds for prohibiting the act of recording a conversation between the parties to the conversation guarantee the secrecy of the conversation between the parties to the conversation, and that the recording by one party to the conversation without the consent of the other party does not constitute the elements of the above Article. The defendant only recorded the contents of the conversation between the above three parties as the party to the conversation in the same place with the non-indicted 2 and 1, and the defendant does not have recorded the conversation between the above non-indicted 2 and 1 as a third party, and it does not constitute a case where one party to the conversation records the contents of the conversation without the other party's knowledge (the above facts charged are not different even if there are two other parties, and it does not constitute a crime. According to the records, according to the above judgment of the court below, the defendant, the non-indicted 2 and 1 did not have any errors in the misapprehension of legal principles as well as the prosecutor's assertion.

4. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park Byung-hee (Presiding Judge)