[1] In a case where Defendant, the representative director of Company A, was indicted on charges of violating the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. on the ground that he infringed on computer users’ information and communications networks by inducing users to naturally install a hidden specific program on a computer, when he/she received a download of a free program on the website operated by Company A, the case affirming the judgment below convicting Defendant on the ground that a malicious program was installed and invaded on the information and

[2] The meaning of “a disability impeding the stable operation of an information and communications network” and “unlawful order” under Articles 48(3) and 71 subparag. 5 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[3] In a case where the function of collecting, processing, storing, searching, transmitting, or receiving information in an information and communications network is not physically performed or it does not interfere with the performance of its function, whether it can be punished as a violation of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. by “Obstruction of Information and Communications Network Utilization and Information Protection, Etc.” (negative)

[4] In a case where the defendant, the representative director of Gap corporation, was indicted on charges of violating the former Act on Promotion of Information and Communications Network Utilization and Information Protection, etc., on the ground that he created "influence search terms" and "automatic" on the search terms related to the pertinent company or improved the order of the relevant website by automatically inputting the search terms instructed in the search windows of the Internet portal site according to the work list, which was automatically released from Gap's server computer, and by allowing the company's web site as instructed in the search results, and caused obstruction to the information and communications network, the case holding that the judgment below convicting the defendant was erroneous in misapprehending legal principles

[5] The case affirming the judgment below convicting the defendant on charges of interference with the business of computer, etc. on the ground that the defendant, the representative director of Gap corporation, was indicted on charges of interference with the business of computer, etc. on the ground that the users of damaged computers where malicious programs were installed, committed an act of causing interference with the management of information by sending false signals to the system server of the Internet portal site as if the users of damaged computers where malicious programs were actually searched as search, search, or did not character the relevant sponsor link at the search result

[1] The case affirming the judgment below convicting users of malicious program intrusion on the information and communications network using the information and communications network connected to the damaged computer, in case where the defendant, a representative director Gap corporation, was charged with violation of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (amended by Act No. 9119 of Jun. 13, 2008), on the ground that the malicious program called "eWb.exe", if he wants to download a free program from the website operated by Gap corporation, infringed on the information and communications network of computer users by inducing them to naturally install the "ATX" in the computer, etc., in light of the circumstances leading up to the installation of malicious program using the information and communications network connected to the damaged computer, communication with Gap corporation server computer using the information and communications network connected to the damaged computer without the awareness of the damaged computer users, and the result of false signal dispatch to the NV computer system connected to the "NV computer system" system, etc.

[2] Article 48(3) and Article 71 subparag. 5 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008) stipulate that a person who has caused an trouble in an information and communications network shall be punished by sending a large amount of signal or information for the purpose of hindering the stable operation of the information and communications network, or ordering the processing of unlawful orders. Thus, in order to punish the act of interference with the above information and communications network, there should be an obstacle to the stable operation of the information and communications network. The information and communications network refers to an information and communications system that collects, processes, stores, searches, transmits, or receives information using telecommunications facilities and equipment under Article 2 subparag. 2 of the Framework Act on Telecommunications or computer technology, thereby hindering the stable operation of the information and communications network or hindering the performance of its functions. Therefore, “unfair order” as prescribed in the above provision refers to an alteration of an information and communications system, which does not constitute an unlawful order or interference with the operation of an information and communications network.

[3] Even if the processing of false information is intended to be processed through an information and communications network, so long as it is a type of information and communications network, the processing of "illegal orders" under Articles 48 (3) and 71 subparagraph 5 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008; hereinafter the "Information and Communications Network Act") cannot be deemed to be "illegal orders". Furthermore, even if the processing of false information was made from the subjective point of view of the information and communications network manager or user, so long as the processing of such false information does not physically perform the function of collecting, processing, storing, searching, transmitting, or receiving information in an information and communications network or it does not interfere with the performance of such function, it cannot be deemed to constitute "information and communications network" under the above provisions, apart from the fact that it constitutes "information processing disorder" under the Criminal Act, and thus, it cannot be punished as a violation of the Information and Communications Network Act through an information and Communications Network Act.

[4] In a case where Defendant, a representative director of the company A, was indicted on charges of violating the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008; hereinafter “Information and Communications Network Act”), on the ground that the Defendant’s malicious program installed on the computers of the computer users automatically entered the search language instructed by the Internet portal site’s search windows, and downloads the company’s web site as a result of the search, thereby creating the search language related to the relevant company, or enhancing the order order in the relevant web site, thereby hindering the NAV’s information and communications network, the case holding that the lower court erred in the misapprehension of the legal principles as to information and communications network usage or obstructing the operation of the information and communications network, since it did not appear that the computer users entered the system server of NA’s computer users into the search window of NA, or even if it appears that the information was different from the fact, it cannot be deemed that there was an obstacle to the information and communications network usage of information and communications network usage.

[5] The case affirming the judgment below which found the defendant guilty on the ground that, in case where the defendant, the representative director of Gap corporation, was indicted for interference with the business of computer, etc. on the ground that the defendant's act constitutes inputting's act of inputting's act of inputting's inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's related system server's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's act of inputting's service of search service or advertisement's link's act of data processing.

[1] Articles 48(1) and 72(1)1 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008) / [2] Articles 48(3) and 71 subparag. 5 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008) (see current Article 71 subparag. 10 of the Act), Article 2 subparag. 2 of the Framework Act on Telecommunications / [3] Articles 48(3) and 71 subparag. 5 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119 of Jun. 13, 2008), Article 314(2) of the Criminal Act / [4] Article 48(3) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (amended by Act No.)

Defendant 1 and six others

Defendant 1 and three others and the Prosecutor

Law Firm Na, et al.

Seoul Central District Court Decision 2010No750 Decided October 14, 2010

Of the judgment of the court below, the guilty part against Defendant 1 and the part against Defendants 2 and 4 are reversed, and this part of the case is remanded to the Panel Division of the Seoul Central District Court. Defendant 3’s appeal and the prosecutor’s appeal are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of any statement in the supplemental appellate brief not timely filed).

1. As to the Prosecutor’s Grounds of Appeal

For the reasons indicated in its reasoning, the lower court acquitted Defendant 5, 6, and 7 of the facts charged in the instant case on the ground that there was no proof of the crime.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. As to Defendant 3’s appeal

The essence of an appeal for a defendant is to file an appeal against a judgment by a lower court, which is an objection against the judgment rendered by a lower court, and to request a judgment favorable to the defendant by correcting the unfavorable judgment. Therefore, unless the judgment by a lower court is disadvantageous to the defendant, the defendant cannot have the right to file an appeal (see Supreme Court Decision 2005Do4866, Sept. 15, 2005

According to the records, the above defendant did not appeal against the judgment of the court of first instance which convicted defendant 3, and the prosecutor appealeds on the grounds of unfair sentencing, but the court below dismissed the prosecutor's appeal. Thus, this part of the judgment below cannot be seen as an unfavorable judgment against the above defendant. Thus, Defendant 3 did not have the right to appeal against the judgment of the court below, and this part of the appeal is unlawful.

3. As to Defendant 4’s ground of appeal

A. As to the intrusion of information and communications networks

The court below held that even if Defendant 4’s non-indicted 1 corporation (hereinafter “non-indicted 1 corporation”) established a “ActX” on the website operated by the company (Internet address omitted), it cannot be deemed that the Defendant consented to the installation of the instant program, without any additional user’s permission to access authority to the computer search system, by way of inducing users to naturally install the “ActX” which was hidden. In light of the purpose and function of the instant program, if he was provided with accurate information on the instant program in light of the purpose and function of the program, he would have not installed the instant program, it would be deemed that he did not install the “ActX” on the ground that he could not be seen as being aware of the fact that the Defendant’s access authority to the instant program could not be acknowledged as being a specific user’s computer server or a specific user’s access authority to the instant program on the ground that the instant program was carried out by an automatic order without the user’s awareness of the damage from the computer, and that the Defendant periodically sent the instant program to the Internet server and the Internet server.

The crime of violation of Articles 72(1)1 and 48(1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 9119, Jun. 13, 2008; hereinafter “Information and Communications Network Act”) may be established when an intrusion upon an information and communications network beyond the authorized access authority or beyond the allowed access authority (see, e.g., Supreme Court Decision 2011Do5299, Jul. 28, 2011). The lower court did not err in the misapprehension of the legal doctrine as to the information and communications network of this case, as alleged in the ground of appeal by misapprehending the legal principles as to the information and communications network of this case, which affected the conclusion of the judgment, on the ground that the intrusion upon the information and communications network of this case by using the information and communications network connected to the damaged computer, the implementation of the program of this case, and the communication with Nonindicted Party 1’s server computer connected to the damaged computer.

B. As to distribution of malicious programs

The court below affirmed the judgment of the court of first instance which convicted this part of the charges on the ground that the program of this case is a program that could interfere with the operation of an information and communications system, information and data, or program, and constitutes “malicious program” as provided by Article 48(2) of the Information and Communications Network Act, on the ground that the program of this case is operated automatically without additional order, and periodically communicates with Nonindicted Company 1’s server computer without additional order, and the service of sending false signals to NAV system as if it searched specific search terms on the screen as a result of search or release after search, or where a specific link was charactered on the screen as a result of the search. This may reduce the computer performance and Internet speed by raising the CPU or network share of the damaged computer in the process where the damaged computer did not intend.

Examining the reasoning of the lower judgment in light of Article 48(2) of the Information and Communications Network Act and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on “malicious program” as provided in Article 48(2) of the Information and Communications Network Act, contrary to what is alleged in the grounds of appeal

C. As to interference with information and communications networks

(1) Article 48(3) and Article 71 subparag. 5 of the Information and Communications Network Act provide that a person who has obstructed an information and communications network by sending a large amount of signals or information or ordering the processing of unlawful orders for the purpose of hindering the stable operation of the information and communications network. Thus, an information and communications network refers to an information and communications system that collects, processes, stores, searches, transmits, or receives information by using telecommunications facilities and equipment under Article 2 subparag. 2 of the Framework Act on Telecommunications or by using telecommunications facilities and equipment and computers and computer technologies, thereby hindering the stable operation of the information and communications network or hindering the performance of its functions. Therefore, “illegal orders” under the aforementioned provisions are one of the methods that may hinder the stable operation of the information and communications network, such as sending a large amount of signals or information, and thus, an order to modify the information and communications network system or to revise the system for the purpose of causing considerable interference with the implementation of the system. Therefore, it is unreasonable to interpret the system to constitute an additional program or to revise the system.

However, even though the processing of false information is intended to be processed through an information and communications network, so long as it is a type of information and communications network, it cannot be deemed to have processed "illegal orders" as provided in the above provisions. Furthermore, even if the processing of false information was made from the subjective standpoint of the manager or user of the information and communications network to create the result of information processing contrary to the truth, it shall not be deemed to constitute a "Obstruction of Information and Communications Network" as provided in the Criminal Act, unless the function of collecting, processing, storing, searching, transmitting, or receiving information is physically prevented or it does not interfere with the performance of such function, and therefore, it shall not be punished as a "Obstruction of Information and Communications Network Act" as provided in the above provisions.

(2) According to the reasoning of the lower judgment and evidence duly admitted, Defendant 4 requested Defendant 2 to disseminate the instant program from July 2006 to October 207, by means of using the instant program from July 29, 2008 to Defendant 1’s search language creation, “the automatic search language creation,” and “the automatic use of the instant program” created by the users of the instant website, which was installed by means of using the instant program. Defendant 2 did not automatically enter the instant program from the website to the user’s access to “the automatic search language creation,” and the pertinent program’s access to the instant website, which was installed by means of using the instant program from around 206 to August 29, 2008. Meanwhile, Defendant 2’s work did not go through the users’ access to the pertinent website without the users’ access to the “the automatic search language,” which is the result of the instant program’s access to the computer’s access to the pertinent website.

(3) Examining the above facts in light of the legal principles as seen earlier, even if the computer users entered the search language in the Niber’s relevant system server or opened the pertinent company’s website, it is difficult to view that the aforementioned Defendants’ act did not interfere with the stable operation of information and communications networks by providing information and communications networks, as it is difficult to view that there was an obstacle to collecting, processing, searching, transmitting, or receiving information in the relevant system of Niber, and thus, it cannot be said that there was an obstacle to information and communications networks by providing information and communications networks. Furthermore, even if the aforementioned Defendant’s act entered the relevant system server into the search language, and processed the relevant website by the computer users and processed the relevant website, or enhanced the order in the relevant website, it cannot be said that the aforementioned act interfere with information and communications networks by causing interference with the collection of information and communications networks and its function cannot be said to have interfered with information and communications networks.

(4) Nevertheless, the lower court affirmed the first instance judgment convicting Defendant 4 of the violation of Article 71 subparag. 5 and Article 48(3) of the Information and Communications Network Act, on the ground that: (a) the act of sending false signals to the Niber’s relevant system by the instant program constitutes the act of inputting’s input of “illegal orders”; and (b) the act of causing or raising the order of causing the creation of “related search terms” and “automatic terms” as intended by the said Defendant was practically hindered in collecting, processing, storing, and searching information in the Niber’s information and communications network; and (c) the act of hindering the stable operation of the Niber’s information and communications network was recognized, thereby adversely affecting the conclusion of the judgment. Therefore, the lower court erred by misapprehending the legal doctrine on unjust orders and interference with the information and communications network under Article 48(3) of the Information and Communications Network Act, thereby adversely affecting the conclusion of the judgment.

D. As to interference with the business of interference with computers, etc.

Article 314(2) of the Criminal Act provides that “a person who interferes with another’s business by destroying an information processing unit, such as a computer, or a special media record, such as electronic records, or by inputting a false information or improper order into an information processing unit, or by causing interference with information processing by other means.” In order to establish the crime, the crime is established as a result of the aforementioned harmful act, such as failure of the information processing unit to function in line with the intended purpose or performance of functions different from the intended purpose. However, insofar as there is a risk of interference with business by causing interference with information processing, the crime is established even if interference with business actually does not occur (see Supreme Court Decision 2008Do11978, Apr. 9, 2009).

According to the reasoning of the judgment below, the court below affirmed the judgment of the first instance court convicting the Defendant of this part of the charges on the following grounds: (a) the damaged computer users, where the instant program was installed, engaged in the act of using the instant program to search the relevant search language or send false signals to the relevant system server as if the search and character were conducted using the instant program; and (b) as a result, it constitutes the act of inputting’s inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of inputting’s act of act of searching and providing search services or of its advertisement.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is in accordance with the legal doctrine as seen earlier. In so doing, it did not err by misapprehending the legal doctrine on the crime of interference with computer, etc.

E. As to fraud by use of computers, etc.

The lower court affirmed the first instance judgment convicting Defendant 4 of this part of the charges on the ground that it is sufficiently recognized that Nonindicted Co. 3, an advertising agent of NAV, could allow Nonindicted Co. 3, as indicated in the first instance judgment, to pay advertising fees, on the ground that: (a) even though Nonindicted Co. 3 did not claim fees for the character due to illegal system and repeated character pattern pattern patterns by analyzing them; (b) Defendant 4, using the program of this case, illegally charactered the NA○○○○ and △△△△△△△△△△△△△ by using the program of this case.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding fraud by using computers, etc., or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

4. As to Defendant 2

A. Judgment on the grounds of appeal

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable cannot

The remaining grounds of appeal are not legitimate grounds of appeal, as they are alleged in the grounds of appeal by the defendant or not subject to a judgment ex officio by the court below.

B. Ex officio determination on the obstruction of information and communications networks

According to the reasoning of the lower judgment and the evidence duly admitted, Defendant 2, as indicated in this part of the facts charged, operated as if he searched search terms related to the search terms, such as “NAV”’s “delivery of fireworks,” etc., and carried out the work of raising the web site order, “influence search terms,” and “automaticly completed terms,” which are related to the search terms, such as “NAVN’s delivery of fireworks,” and the aforementioned work was carried out by Defendant 2 using the program of PVN to improve the order of the user’s online protocol-delivery and to change the Internet protocol-delivery (IP) from May 22, 2006 to February 2, 2008, by setting up the Internet protocol-related search terms on the pertinent web site as if the user’s character was automatically turned out from the web site to the “the most automatic search terms,” and the pertinent work was carried out by the user’s online protocol-related computer’s search and delivery.

Examining the above facts as seen in Section 3-C of the above 3-C, even if the computer users entered the search language in the Niber's relevant system server or opened the relevant company's web site as if they charactered, it is difficult to view that there was an obstacle to the stable operation of information and communications networks because it was not an order or program, but an "illegal order" as stipulated in the above provisions. Furthermore, even if the system server of Niber entered computer users into the search language in fact and processed the relevant web site, or enhanced the order of the relevant web site, it cannot be said that it could not interfere with information and communications networks by preventing physical interference with the collection, processing, storage, transmission, or reception of information in the relevant system of Niber or by causing interference with information and communications networks, and it cannot be said that it cannot be said that it interfere with information and communications networks under Article 5-4 of the Information and Communications Network Act, as it did not interfere with information and communications networks.

Nevertheless, the lower court upheld the first instance judgment that found Defendant 2 guilty of violating Article 71 subparag. 5 and Article 48(3) of the Information and Communications Network Act. In so doing, the lower court erred by misapprehending the legal doctrine on unjust orders and interference with the information and communications network under Article 48(3) of the Information and Communications Network Act, thereby adversely affecting the conclusion of the judgment.

5. As to Defendant 1

A. Judgment on the grounds of appeal

In a case where the defendant appealed against the judgment of the court of first instance only on the ground of unfair sentencing, such judgment of the court of first instance may not be considered as the grounds for appeal, such as misconception of facts or misapprehension of legal principles (see Supreme Court Decision 2006Do1719, Apr. 13, 2006

According to the records, Defendant 1 appealed the judgment of the court of first instance only on the ground of unfair sentencing as the grounds for appeal. Thus, the above Defendant’s appeal can not be a legitimate ground for appeal, such as misunderstanding of legal principles, incomplete hearing, and omission of judgment.

B. Ex officio determination on the obstruction of information and communications networks

Of the facts charged against the above defendant, the point of impediment to information and communications networks is using a program that manipulates as if the search language related to the "bredelivery" was searched once per minute from January 2006 to June 2006, and from that to December 2007, Defendant 4 conspired with Defendant 4 and re-requested to Nonindicted Co. 4 operated by Defendant 2 for the method as seen in the above 4-B. Since October 2007, Defendant 4 used the method as seen in the above 4-B. The method as seen in the above 3-C. of the above 3-C. using the method as seen in the above 3-C., respectively, Defendant 4 installed the program of this case on the damaged computer of others and installed the program of this case on the part of others, and used the method as seen in the above 3-C.

However, the reasoning for reversal of the judgment of the court below against Defendant 4 in the above 3-C of the above 3-C is common to the above facts charged against Defendant 1, and it also constitutes the ground for reversal as to the above acts by Defendant 1 from January 2006 to June 2006.

Nevertheless, the lower court upheld the first instance judgment that found Defendant 1 guilty of violating Article 71 subparag. 5 and Article 48(3) of the Information and Communications Network Act. In so doing, the lower court erred by misapprehending the legal doctrine on unjust orders and interference with the information and communications network under Article 48(3) of the Information and Communications Network Act, which affected the conclusion of the judgment. In addition, this constitutes part of the grounds for reversal for co-defendant under Article 392 of the Criminal Procedure Act.

6. Scope of reversal

As seen earlier, each part of the judgment below that reversed Defendant 1, 2, and 4 on the violation of the Information and Communications Network Act due to the failure of information and communications networks by Defendant 1, 2, and 4 should be reversed, and each of the above parts that reversed Defendant 1, 2, and 4 should be reversed was sentenced to one punishment by each of the above defendants on the grounds that the remaining parts found guilty of the above Defendants and the concurrent crimes under the former part of Article 37 of the Criminal Act, or the ordinary concurrent crimes under Article 40 of the Criminal Act were committed. Thus, the guilty part against Defendant 1 and the part against Defendant 2, and

7. Conclusion

Therefore, among the judgment of the court below, the guilty part against Defendant 1 and the part against Defendants 2 and 4 are reversed, and this part of the case is remanded to the court below for a new trial and determination. All of Defendant 3’s appeals and prosecutor’s appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)