[1] Whether a person who received personal information from a public institution employee in charge of the management of personal information becomes the subject of a violation of Article 23(2) of the Act on the Protection of Personal Information of Public Institutions (negative)

[2] In a case where an employee of the Gun office who is not in charge of the management of personal information unfairly uses a de facto personal information from the employee in charge, whether the employee can be punished pursuant to Articles 23(2) and 11 of the Act on the Protection of Personal Information of Public Institutions (negative)

[1] The language and text of Article 11 of the Act on the Protection of Personal Information of Public Institutions and the language and text of “public institution” should also be interpreted to mean that “a person who was an employee or a former employee” can be seen as “a person who was an employee or a former employee.” Meanwhile, Article 23(2) of the same Act prohibits a public institution’s employee, etc. who was engaged in the management of personal information from divulging personal information that he/she became aware of in the course of performing his/her duties and does not prohibit another person who was given a personal information from using such information. Ultimately, Article 23(2) of the same Act merely prohibits an employee, etc. who was engaged in the management of personal information from divulging his/her personal information

[2] In a case where an employee of the Gun office who is not in charge of the management of personal information unfairly uses a de facto personal information from the employee in charge, he/she may not be punished pursuant to Articles 23(2) and 11 of the Act on the Protection of Personal Information of Public Institutions.

[1] Articles 11 and 23(2) of the Act on the Protection of Personal Information of Public Institutions / [2] Articles 11 and 23(2) of the Act on the Protection of Personal Information of Public Institutions

Defendant

Defendant

Law Firm Pacific, Attorneys Lee Jong-soo et al.

Seoul High Court Decision 2006No1216 decided September 28, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

1. As to each violation of the Public Official Election Act

The court below, after compiling the adopted evidence, found the facts as stated in its decision, and found the defendant guilty of each violation of the Public Official Election Act among the facts charged in this case on the ground that the defendant's act is necessary to obtain voting for the purpose of election of the candidate (name omitted) who is the 4th and incumbent head of the Gun, and is an active and planned act in favor of the defendant to obtain voting for the purpose of election of the candidate for the 600 persons from among the basic basic livelihood security beneficiaries within the human-gun area, and it cannot be deemed that it is ordinary, ordinary, private, or mere preparation for election campaign. In light of the above circumstances, it is sufficiently recognized that the defendant's subjective perception of the violation of the Public Official Election Act has been recognized. In light of the records, the fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of legal principles as to election campaign or there is no misconception of facts in violation of the rules of evidence.

2. As to the violation of the Act on the Protection of Personal Information by Public Institutions

A. Summary of this part of the facts charged

Of the facts charged in the instant case, the summary of the violation of the Act on the Protection of Personal Information of Public Institutions (hereinafter “Act”) is as follows: “The defendant is a public official of Grade VI of the local administration in the position of the Korea Social Welfare Service and (name omitted); while a person who manages personal information in the public agency is prohibited from using personal information for any unlawful purpose, he/she shall not use the personal information he/she has become aware of in the course of performing his/her duties; on March 20, 2006, he/she shall be free from social welfare and employees to hold personal information printed out, including 1,526 personal information and contact details of a person eligible to guarantee citizens’ living security for the disabled and the elderly; on April 2, 2006, from around the 19th day of the same month, he/she shall be free to know whether he/she is using his/her personal information in the course of performing his/her duties (number 03-number omitted); and on the basis of his/her name, etc., he/she shall be free to know whether he/she is unable to use his/her personal information.

B. The judgment of the court below

The court below found the defendant guilty on the ground that Articles 11 and 23 (2) of the Act apply to a person who was an employee or a former employee of a public institution in charge of the management of personal information in light of the provisions thereof, and on the premise that there is no reason to limit the scope of application to a person who was an employee or a former employee in charge of the management of personal information.

C. The judgment of this Court

However, we cannot agree with the above decision of the court below for the following reasons.

Article 11 of the Act provides that "A person who is or was an employee of a public institution in charge of managing personal information or a person who is or was an employee of such public institution entrusted with the management of personal information by such public institution shall not divulge or process such information without authority or provide such information for another person's use." Article 23 (2) of the Act provides that "a person who uses such information for unjust purposes, such as disclosing or managing the personal information in violation of Article 11 or providing such information for another person's use, shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding ten million won." Thus, the literal interpretation of Article 11 of the Act provides that "a person who is or was an employee of such public institution in charge of managing personal information shall be punished by a fine not exceeding 10 million won." Meanwhile, Article 11 of the Act provides that "a person who is or was an employee of such public institution in charge of managing such information shall not divulge such personal information to another person, but shall not prohibit such person from using such information."

According to the records, the defendant is aware that he did not take charge of the management of personal information by public officials in the position of the Korea Social Welfare Agency and (name omitted) or the basic livelihood beneficiaries. In light of the above legal principles, even if the defendant used the personal information illegally from the employee in charge, such defendant's act cannot be punished pursuant to the above provision.

Nevertheless, the court below found the above facts charged guilty on the grounds as stated in its holding. Thus, the court below erred by misapprehending the legal principles on the punishment subject to a violation of Article 23 (2) of the Act, and it is obvious that such illegality affected the judgment.

3. Scope of reversal

Therefore, the part of the judgment of the court below that violated the Act on the Protection of Personal Information of Public Institutions should be reversed, and since each part of the violation of the Act on the Protection of Personal Information of Public Institutions, which is in the relationship of mutual concurrence, cannot be reversed, the judgment of the court below should be reversed

4. Conclusion

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 Kim Ji-hyung (Presiding Justice)