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대법원 2017.03.15 2016도19843

The appeal is dismissed.


The grounds of appeal are examined (to the extent of supplement in case of supplemental statements in the grounds of appeal not timely filed).

1. A. The purpose of the Act on the Protection of Communications Secrets is to protect the confidentiality of communications and further enhance the freedom of communications, and to restrict the confidentiality and freedom of communications and conversations, the subject matter is limited and strict legal procedures are followed (Article 1). Accordingly, no person may record or listen to conversations between others that are not open to the public without the provisions of the aforementioned Act, criminal litigation or military court law (Article 3(1) main text), and the content of conversations acquired through recording conversations between others that are not open to the public or hearing by using electronic or mechanical means cannot be used as evidence in a trial or disciplinary procedure (Articles 14(2), 14(1), and 4). In light of the language, text, content, structure, and legislative intent, etc. of the aforementioned provisions under the Act on the Protection of Communications Secrets, “communication between others protected in the Act on the Protection of Communications Secrets” refers to communications activities, in principle, giving and fostering speech to the parties at the site.

Therefore, the sound generated from an object, which is not a human being fostering, does not fall under the “communication” between others.

In addition, even if one person's voice is a voice, it does not mean that the other party communicates his/her intention, but merely non-stigious statements or awareness, etc. are "other human dialogue" unless there are special circumstances.

On the other hand, guaranteeing the dignity and value of the people as human beings belongs to the basic duties of state agencies, which should be realized in criminal procedures.

Even if such sound does not correspond to “dialogation” between others as stipulated in the Communications Secret Protection Act, whether it is possible to use such evidence in criminal proceedings.