[1] In a case where a text message is already sent to or stored in the addressee's mobile phone so that it can be perused at any time, whether it is subject to "wireception" under the Protection of Communications Secrets Act (negative)

[2] In a case where the Defendant was prosecuted for violating the Protection of Communications Secrets Act by wiretappinging a large number of text messages stored in the server while running the business of delivering or receiving text messages, etc. to customers’ cell phones via the computer server, the case reversing the first instance judgment convicting the Defendant on the ground that the above text messages constitute telecommunications whose transmission and reception were completed, and thus, are not subject to wiretapping, and thus, acquitted him/her

[1] Comprehensively taking account of the provisions of Article 2 subparag. 7 and subparag. 3 of the Protection of Communications Secrets Act, the aforementioned Act requires the present nature of telecommunications that takes place at the same time with the act of communications, and thus acquiring and recording the contents of telecommunications that has completed transmission and receipt does not constitute a wiretapping. Moreover, in light of the prior justice, the term “wirecking” means “wirecking” as defined in Article 2 subparag. 7 of the Protection of Communications Secrets Act refers to “telecommunications”, and the subject of the “compeaching” as the basic concept of “compeaching” is limited to “using a specific device, device, etc.” as the means of hearing, and it is limited to “the learning of the contents of the telecommunications by listening to the sound of the communications,” and such legal doctrine applies to “the text messages falling under telecommunications” as defined in Article 2 subparag. 3 of the Protection of Communications Secrets Act, and thus, it does not constitute “the subject of the wiretapping at any time before receiving the text messages, if it does not have reached the recipient’s present text message.

[2] In a case where the Defendant was indicted for violating the Protection of Communications Secrets Act on the ground that the Defendant’s act did not constitute a wiretapping under Articles 3(1) and 2 subparag. 7 of the Protection of Communications Act on the ground that the Defendant’s act did not constitute a wiretapping under Article 3(1) of the Protection of Communications Act on the ground that the Defendant’s act was erroneous in the misapprehension of legal principles in the judgment of the first instance, which found the Defendant guilty on the ground that the Defendant’s act did not constitute a wiretapping under Articles 3(1) and 2 subparag. 7 of the Protection of Communications Act on the ground that the Defendant’s act was erroneous in the misapprehension of legal principles on the grounds that the judgment of the court of first instance, which found the Defendant guilty on the ground that the Defendant’s act did not constitute a wiretapping under Article 3(1) of the Protection of Communications Secrets on the ground that

[1] Article 2 subparag. 3 and 7 of the Protection of Communications Secrets Act / [2] Article 3(1) of the former Protection of Communications Secrets Act (Amended by Act No. 9819, Nov. 2, 2009); Article 2 subparag. 3 and 7 of the Protection of Communications Secrets Act; Article 16(1)1 of the Protection of Communications Secrets Act; Articles 325 and 364(2) of the Criminal Procedure Act

[1] Supreme Court en banc Order 2002Hun-Ba85 Decided Nov. 25, 2004 (Hun-Gong99, 1276)

Defendant

Defendant

All-times (prosecutions) and wests (public trials)

Attorney White-ro (Korean)

Seoul Central District Court Decision 2011Da3294 Decided October 19, 2011

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment of innocence against the accused shall be published.

1. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

In spite of the fact that any person was unable to detect mail and telecommunications without recourse to the Protection of Communications Secrets Act, the Criminal Procedure Act or the Military Court Act, the Defendant, at the office of Nonindicted Co. 1 in Jongno-gu Seoul (hereinafter “Nonindicted Co. 1”) around February 2009, stored the file of Nonindicted Co. 1’s mobile phone text messages 28,81, stored in Nonindicted Co. 1’s computer server without the consent of the party concerned, stored the file of Nonindicted Co. 1’s mobile phone text messages 28,81, stored in the Defendant’s personal computer in the Defendant’s own computer without the consent of the party concerned.

B. The judgment of the court below

In full view of the adopted evidence, the court below found the above facts charged guilty.

2. Summary of the grounds for appeal;

On June 1, 2008, the Defendant entered into an integrated message service contract with Nonindicted Co. 2, a value-added telecommunications business operator under the Telecommunications Business Act, to allow the Defendant to deliver or receive text messages, etc. to his cell phone via Nonindicted Co. 1’s official computer server, and thereafter sent text messages to the customers via Nonindicted Co. 1’s computer. However, around January 2009, the third party, upon hackinging the above server management program, sent the advertisement text messages in large volume, and thereby the provision of the above text messages was suspended. The Defendant perused the contents of the instant text messages stored in the said computer server to confirm that it was not the Defendant’s sending of the above text messages. Nevertheless, the lower court found the Defendant guilty of the facts charged on a different premise. In so doing, the lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

3. Judgment of the court below

We examine ex officio prior to the judgment on the grounds for appeal by the defendant.

A. In full view of the provisions of Article 2 subparag. 7 and subparag. 3 of the former Protection of Communications Secrets Act (amended by Act No. 6546 of Dec. 29, 2001), wiretapping under the above Act requires the present situation where the communication is conducted simultaneously with the communication act. Thus, it does not constitute wiretapping (see Supreme Court Decision 2003Do344, Aug. 22, 2003; Supreme Court en banc Decision 2002No9492, May 14, 2003; 2002No9492, May 14, 2003). Also, according to the Korean language prior definition, the term “wireckh” refers to 's peeping’, in light of such prior definition, see Article 2 subparag. 7 and subparag. 3 of the former Protection of Communications Act (amended by Act No. 6305, Dec. 29, 200). 202.

B. Such legal doctrine also applies to text messages falling under telecommunications stipulated in Article 2 subparag. 3 of the Protection of Communications Secrets Act (hereinafter “Act”). As such, the text messages prior to receiving are subject to wiretapping. However, if text messages are already delivered to the addressee’s mobile phone and are in the state of allowing perusal at any time, it can be deemed that the transmission and receipt of text messages has been completed. Therefore, it is not subject to wiretapping due to lack of current nature.

C. In light of the legal principles as seen earlier, the instant text messages, which the Defendant perused, are all stored and stored in the server on which text messages were sent, and after the sender’s transmission, are in a situation where the addressee is able to receive, and thus, are not subject to wiretapping. Therefore, the Defendant’s act does not constitute wiretapping as prescribed in Articles 3(1) and 2 subparag. 7 of the Act.

D. Therefore, since the facts charged in this case constitute a case that does not constitute a crime, the court below found the defendant guilty under the former part of Article 325 of the Criminal Procedure Act, which erred by misapprehending the legal principles on wiretapping under the Protection of Communications Secrets Act, thereby affecting the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of misunderstanding of facts, and the judgment below is reversed and it is again decided as follows.

【Discretionary Judgment】

The summary of the facts charged in this case is the same as that of the above Paragraph (1) of Article 1, and since it falls under a case that does not constitute a crime as seen in the above Paragraph (3) of the above Article, it is so decided as per Disposition by the decision of the court below in accordance with the former part of Article 325 of the Criminal Procedure Act and the summary of the judgment of innocence against the defendant under Article 58

Judges Lee Dong-chul (Presiding Judge)