2020Do16276 Violation of Telecommunications Business Act

Defendant

Prosecutor

Attorney Jeong Dong-dong (Korean National Assembly)

Seoul Eastern District Court Decision 2020No1093 Decided October 30, 2020

July 29, 2021

The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined.

1. A relation to the violation of the Telecommunications Business Act due to the opening of another communications;

A. Summary of the facts charged

In operating a call center in a foreign country, including China, it is an organization that commits a crime by deceiving money from a financial institution or an investigative agency by walking the phone without permission to an unspecified number of people, and the organization that controls the organic contact between the union members, and the counsel staff at the call center in name and in name, demands the domestic victims to transfer money by leaving the phone, and the name-based mid-term organization of the telegram dialogue (Omission), the Kakakakakao Stockholm conversation (Omission), which is called the Internet network by accessing the call center to the Internet network under the above instruction from the general responsibility of the names, play the role of managing the communication equipment (Voice OIP Gway, hereinafter referred to as 'VoIPT) that makes it displayed in the victim's phone number changed to the domestic mobile phone number, and the defendant, who is ordered to directly share the office in the Republic of Korea after receiving the direction from the intermediate organization.

No one may intermediate a third party's communications using telecommunications services provided by a telecommunications business operator or provide such services for a third party's communications.

Nevertheless, around April 2, 2020, the Defendant, at the Guro-gu Seoul Special Metropolitan City ( Address 1 omitted) around April 5, 2020, mediated the communication of others using telecommunications services provided by telecommunications business operators in collusion with those of others, including by installing a core chip on the Internet in each of the above places under the direction of a person without the name, at the Guro-gu Seoul Metropolitan Government ( Address 2 omitted) around April 5, 2020.

B. The judgment of the court below

The court below affirmed the judgment of the first instance which acquitted the defendant of this part of the facts charged on the ground that, as long as the defendant was guilty of the facts charged that the caller's phone number was changed for the purpose of causing property benefits by deceiving other persons in collusion with the name-free boxes, etc. as stated in the facts of the crime in the judgment of the first instance, and the defendant's name-free persons who ordered the defendant to install and install the VoIP dam and to install and manage the conviction card, and the singing crew sent through the domestic mobile network phone number using VoIP dam constitutes a co-principal of the crime of violating the Telecommunications Business Act due to the change in the phone number display line in relation to the defendant, it cannot be deemed that the above singing crew's act constitutes a case where the defendant's act of allowing the above singing crew members to transmit the

C. Judgment of the Supreme Court

1) The main text of Article 30 of the Telecommunications Business Act provides that no one may intermediate a telecommunications service provided by a telecommunications business operator, or provide it for a third party’s communications, using a telecommunications service provided by another telecommunications business operator without legitimate authority. This is a provision that prevents a telecommunications business operator from impeding the business of the telecommunications business operator or disturbing the telecommunications market order by providing the same or similar service provided by the telecommunications business operator without legitimate authority (see, e.g., Constitutional Court en banc Order 2001Hun-Ba5, May 30, 2002). Here, “the mediating another’s communications” refers to an act of linking communications among other persons by using telecommunications services provided by a telecommunications business operator. In light of the language and text of the above provision and legislative intent, even if the party involved in the communications request or mediating communications, such act constitutes “the mediating of other persons’ communications” as provided by the main text of the above provision. Moreover, even if the party involved in communications mediating communications falls under a criminal act in relation to the actor and his/her accomplice, such act constitutes an act of communications.

2) According to the reasoning of the lower judgment and the evidence duly admitted, the Defendant is aware of the fact that the Defendant managed the said VoIP Gawawa by installing a luIP Gawa by means of connecting VoIP Gawawawawawa in the Internet or installing a lux in the name of a third party, and the employees operating the Bosing Gawawawawa can make a call with the victims of Bosing using the convictions installed in the above VoIP Gawawawawa. In light of the aforementioned legal principles, the Defendant’s above act constitutes “the act of mediating communications between Bosing Ga and the victims of Bosing,” and thus constitutes a crime of violating Article 30 of the Telecommunications Business Act, since Article 97 subparag. 7 and the main text of Article 30 of the Telecommunications Business Act is “the act of mediating communications between Bosing Gawawa and the victims of Bosing.”

Nevertheless, the lower court erred by misapprehending the legal doctrine on the establishment of a crime of violating the Telecommunications Business Act due to another person’s communications intermediary, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal assigning this error is with merit.

2. Relation to the violation of the Telecommunications Business Act due to the unregistered common telecommunications business;

A. Summary of the facts charged

Any person who intends to operate a telecommunications business shall register with the Minister of Science and ICT after preparing financial and technical capabilities, plans to protect users, and other matters prescribed by Presidential Decree, as prescribed by Presidential Decree.

Nevertheless, around April 2, 2020, the Defendant, at the Guro-gu Seoul Special Metropolitan City ( Address 1 omitted) around April 5, 2020, sent a phone call using the above VoIP chips to the Internet at each of the above places under the direction of the false names in Guro-gu Seoul ( Address 2 omitted) around April 5, 2020, and operated a common telecommunications business without registration with the Minister of Science and ICT, by in collusion with the Minister of Science and ICT, such as the installation of a core chips on the VoIP chips in each of the above places.

B. The judgment of the court below

For the reasons indicated in its reasoning, the lower court upheld the first instance judgment that acquitted the Defendant of this part of the charges on the ground that it is difficult to view that the Defendant could not be deemed to have provided telecommunications services to another person, and that it constitutes a key telecommunications business operator

C. Judgment of the Supreme Court

1) Article 6(1) of the Telecommunications Business Act provides that a person who intends to operate a key telecommunications business shall register with the Minister of Science and ICT after fulfilling the following requirements, as prescribed by Presidential Decree. Article 95 Subparag. 3 of the Telecommunications Business Act shall be punished by a person who operates a key telecommunications business without registration under Article 6(1)

According to the Telecommunications Business Act, the term "key telecommunications business" is a business that installs a telecommunications line equipment and provides a key telecommunications service (Article 5), and the term "key telecommunications service" means a telecommunications service that transmits or receives voice, data, images, etc. without any change to the contents or form thereof, such as telephone, Internet connection, and that leases telecommunications line equipment to enable transmission or reception of voice, data, images, etc. (Article 2 subparagraph 11 main sentence), and the term "telecommunications service" means a telecommunications service that arranges another's communications or provides telecommunications equipment for another's communications (Article 2 subparagraph 6), and the term "telecommunications equipment and facilities" means equipment and facilities necessary for telecommunications (Article 2 subparagraph 2).

2) According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are recognized.

A) The Singing organization, via its lighting staff, entered into a lease agreement on the Guro-gu Seoul Metropolitan Government ( Address 1 omitted) Guro-gu (Road 2 omitted) and provided the Defendant with the refluent spirit opened in the name of VoIP Gawa and another person.

B) On April 2, 2020, the Defendant managed the above VoIP sets by installing a method of connecting VoIP setswawawawawawawa in Guro-gu Seoul ( Address 1 omitted), around April 5, 2020, with the direction of the organization book (Omission) and the name of the telegram conversation (Omission) and the name of the Kakakakao Stockholm (Omission). On April 5, 2020, Guro-gu Seoul ( Address 2 omitted) installed in connection with the Internet, or installed in connection with VoIP setswawawawa in the name of a third party.

C) As a result, the Defendant mediated the victims of singing using the convictions installed in the above VoIP Roveswa on April 6, 2020 through 89 times from April 6, 2020 so that the Defendant could make telephone calls with the victims of singing.

3) Examining the above facts in light of the aforementioned provisions and the legal principles as seen earlier, the Defendant, while installing and managing VoIP Gawawa, can be recognized as operating a key telecommunications business without being registered with the Minister of Science and ICT in collusion with the Minister of Science and ICT, by repeatedly and continuously mediating staff members of Bosing through the combination of Internet network and domestic mobile communication network so that they can make telephone calls with the victims of Bosing, thereby enabling them to use them, and operating a key telecommunications business. The circumstance that the Defendant’s act constitutes a key telecommunications business management required for registration does not affect the establishment of the above crime.

Nevertheless, the lower court rendered a not guilty verdict on this part of the facts charged solely for the reasons indicated in its holding, is erroneous by misapprehending the legal doctrine on the establishment of a crime of violating the Telecommunications Business Act due to the operation of the unregistered telecommunications business, thereby adversely affecting the conclusion of the judgment. The

3. Scope of reversal

For the foregoing reason, the part of the judgment below on the violation of the Telecommunications Business Act due to opening another telecommunications intermediary and the part on the violation of the Telecommunications Business Act due to the operation of the unregistered telecommunications business should be reversed. However, since each of the above reversed parts and the judgment on conviction among the judgment below are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below should

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-soo

Justices Lee Ki-taik

Justices Park Jung-hwa

Justices Noh Tae-ok