Defendant

Defendant

Kim Tae-tae

Incheon District Court Decision 2010Gohap792 Decided May 14, 2010

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

The sentence of the lower court (one million won of a fine) is too unreasonable.

2. Ex officio determination

Before the judgment on the grounds for appeal by the defendant, this paper will examine ex officio as follows.

A. Summary of the facts charged in this case and the judgment of the court below

The summary of the facts charged of this case is as follows: “No person may damage other person’s information processed, stored, or transmitted through an information and communications network, or infringe another person’s secret, stolen, or divulge it. The Defendant, as an operator of the Internet “△△△△” website, set the compressed file called “○○○○○○○○○○○○○○○○○○○○○○○○○○○” on the Internet bulletin around June 15, 2008, which is a title of “○○○○○○○○○○○○○○○○○○○○” on the Internet bulletin, thereby enabling other members who connect the said page to pass it. Accordingly, the Defendant infringed, stolen, or leaked another person’s secret that is processed, stored, or transmitted through the information and communications network.” As such, the lower court found the Defendant guilty of the facts charged of this case.

B. Judgment of the court below

Penal laws should be strictly interpreted and applied in accordance with the language and text, and the systematic and logical interpretation method that clearly expresses the logical meaning of the language and text in accordance with the systematic relationship that takes into account the legislative intent and purpose of the relevant provision within the possible meaning of the language and text is for the interpretation most adjacent to the essential contents of the provision, and is in compliance with the principle of no punishment without the law, but it is not allowed to excessively expand or analogically interpret

Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter referred to as the "Act") provides that "no person shall damage another person's information processed, stored, or transmitted through an information and communications network, or infringe, use, or divulge another person's secrets." Article 71 subparagraph 11 of the same Act provides that "a person who damages another person's information or infringes, uses, or divulges another person's secrets in violation of Article 49" shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50 million won." Article 1 of the same Act provides that "the purpose of this Act is to promote the use of information and communications networks and protect the personal information of the users of information and communications services and create an environment in which the users of information and communications networks can use such information in a sound and safe manner, thereby contributing to the improvement of people's lives and the promotion of public welfare." Chapter 6 prohibits another person from infringing upon another person's privacy or reliability in an information and communications network and thus violates Article 48 or 147 of the disclosure and disclosure of information and communications network without legitimate authority.

However, the facts charged of this case are limited to the defendant's business with "○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○” page operated by him

Therefore, even if it is recognized that the above list, which the defendant received from the person who was not the party's name, constitutes another person's secret and the need to be protected, it shall not be deemed that the above act constitutes a case where the defendant infringed, stolen, or leaked another person's secret which is processed, stored, or transmitted through the information and communications network under Article 71 subparagraph 11 of the same Act, unless there is evidence to prove that the name of this case was acquired without the consent of the person who prepared the list or the manager of this case by the means of infringing the information and communications network, etc. (the above act of the defendant's act of disclosing another person's secret to the Internet car page as stated in the facts charged in the facts charged of this case shall not be deemed as a case where it infringed, stolen, or leaked another person's secret which is processed, stored, or transmitted by the information and communications network under Article 71 subparagraph 11 of the same Act, which

Ultimately, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in the misapprehension of the judgment, since the facts charged of this case is not a crime or there is no proof of a crime.

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) and (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, on the grounds of ex officio reversal as seen above, and the judgment below is reversed, and the following is again decided after pleading.

The summary of the facts charged of this case is the same as that of the above 2-A(A). As seen in the above 2-B(b), since the facts charged of this case is not a crime or there is no proof of a crime, the defendant shall be acquitted pursuant to the former or latter part of Article 325 of the Criminal Procedure Act.

Judges Yoon Jong-soo (Presiding Judge) (Presiding Judge)