Defendant

Defendant

Captain Dog Jae-in

Of the military advocates, the first-class limited military advocates;

Mads

Korea Army Headquarters General Military Court Decision 2004Ra2 decided Mar. 12, 2004 (Convening the convening authority, March 22, 2004)

The judgment of the court below is reversed.

The sentence of sentence shall be suspended for the defendant.

1. Summary of grounds for appeal;

First, Article 48(1) of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, Etc. intends to regulate acts that threaten the stable operation of information and communications networks by acquiring the authority of the operator of the information and communications network, so the act of access to the information and communications network of another person cannot be punished, and thus the judgment of the court below should be acquitted. Second, the judgment of the court below is too unreasonable.

2. Determination

A. Ex officio determination

Before the judgment on the grounds for appeal by the defendant was rendered ex officio, the military prosecutor applied for the permission to change the applicable provisions of Acts to Article 63(1)1 of the Act on Promotion of Information and Communications Network Utilization and Communications Network Utilization and Information Protection, etc., and allowed the party members to do so. Thus, the judgment of the court below on the premise of the initial facts charged cannot be maintained,

B. As to the defendant's argument

A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, a teleological interpretation in light of the legislative intent, purpose, legislative history, etc. of the law shall not be excluded in the interpretation of the penal provision unless it goes beyond the ordinary meaning of the text and text (see Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002, etc.).

In general, the so-called hacking that intrudes on an information and communications network refers to any act that intrudes on another person's information processing system or data processing system by using a computer or interferes with the functions or electronic records performed by another person's information processing system or by technical means, and hacking itself means only such act of improper infiltration, but it is not an act that interferes with the computer system, but it is judged that from the viewpoint of a person who operates the system, it seriously threatens the stability of the system and the information and communications network.

In addition, Articles 22(1) and 22(2) and 30 of the former Act on Promotion of Dissemination and Expansion of Information and Communications Network Utilization (amended by Act No. 3848, May 12, 1986) and Article 19(3) and Article 54-4 of the former Act on Promotion of Use of Information and Communications Network Utilization (amended by Act No. 5835, Feb. 8, 199) stipulate that measures to protect information and communications networks shall be infringed or damaged. On the other hand, Articles 63(1)1 and 48(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. do not require infringement or damage. If an unlawful intrusion on information and communications networks does not require punishment, it is reasonable to interpret that the act of intrusion does not infringe on protective measures to respond to a hacking crime that does not entail infringement or damage to the protective measures according to the development of today's hacking technology, and thus, it is reasonable to interpret that the act of intrusion does not include a type and password.

Meanwhile, Article 48(1) and (3) of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, Etc. can be deemed to be in a concurrent relationship with the elements of a crime under Article 48(2) and (3) of the same Act. The purport of Article 63(2) of the same Act, which newly established a penal provision, etc. for attempted crimes, is to strengthen the response system of intrusion depending on the type of hacking crime as the type of hacking crime increases, and to extract another person's ID and password as it is to strengthen the response system of intrusion, i.e., techniques of extracting the ID and password from other person, i.e., the method of extracting the ID and password from the other person's infringement, i.e., (IP Soverping) (3) (Pket Sniffing), (4) (Paswncking) to punish the act to unlawfully intrude on information and communications networks.

Therefore, Article 48(1) of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection cannot be construed as a provision that only regulates acts that threaten the stable operation of a computer network by acquiring the authority of the operator of an information and communications network, and the interpretation that the act of intrusion upon another person’s information and communications network without legitimate access authority or beyond permitted access authority includes an act of intrusion upon another person’s information and communications network by using another person’s ID and password

3. Conclusion

Therefore, without examining the grounds for appeal on unfair sentencing, the judgment of the court below is reversed ex officio pursuant to Article 431 and Article 414 subparag. 1 of the Military Court Act, and since it is deemed sufficient for a party member to self-determination based on the records, the decision is rendered directly by the party member through pleadings under Article 435 of the same Act.

Of the criminal facts and the summary of evidence acknowledged by a party member, " using his computer in his office" in paragraph (1) of the criminal facts of the defendant's crime shall be changed to "by using his computer in the office of transmission, the legal transmission division chief shall send a report on his legal transmission and assigned affairs to him in lieu of his office of the Army Headquarters in lieu of the legal identification division of the defendant's office, and it shall be known by using a computer installed in excess of the permitted authorized access authority to the law and its members so as to inform him of the law and its identification number to the law and the members," and "by using a computer installed in the area beyond the above permitted access authority". "In the way of sending the e-mail of the victim's secret by sending the e-mail of the content, it shall be changed to "infusing the ID and password of the victim's secret, which is an information and communications network," and Paragraph (2) of the same Article shall be changed to "in the same way as the above 1 of the victim's digital document" in the same manner as "In this case of the victim's secret."

1. Relevant Article of the facts constituting the crime and the selection of punishment;

Articles 63(1)1 and 48(1) of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, Etc. (Violation of Information and Communications Network) and selection of each fine

2. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravated Punishment of Concurrent Crimes)

3. The punishment to suspend the sentence;

A fine of one million won

4. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act (No. 40,000 won per day)

5. Suspension of sentence;

Article 59(1) of the Criminal Act (see, e.g., Article 59(1) of the Criminal Act (i.e., the primary offender, the depth of Nonindicted 1’s order and the captain of Nonindicted 2’s order submitted a written application of a written application of coaling that the Defendant would take the front of the Defendant’s wife against the Defendant, and the Defendant is a contingent crime

It is so decided as per Disposition for the above reasons.

Mayangyangyang (Presiding Judge) Military Judge Gyeongyang-dong (Presiding Judge)

Note 1) In recent years, using a hacking program, such as butus, etc., which continuously combines and butus a large number of people in advance and continuously connects the butus to the butus, etc., by which the computer user’s ID and passwords are found to be known by the drilling.

Note 2) This is a method of attacking Address by deceiving Address (IPs) and it is a method of creating illegal connection by using the three way number necessary for TCP/IPping (3wayway Handing), which occurs when access to TCP/IPs (TCP/IPs) is made between the transmitting and receiving parties.

Note 3) This means the method by which a person wants to have access to an information and communications network by means of theft of a tag that goes back to the network, it means the method by which a ID and password are identified by using a program to seek it when entering the ID and password.

Note 4) The identification of another person’s ID and password or, when entering any network with his or her ID and password properly admitted, means obtaining the ID and password from other users using the network.