Whether “user” who is the subject of personal information protected by the main sentence of Article 22(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. is premised on the relationship between the provider of information and communications services and the provision of information and communications services (affirmative

In full view of the language and text of Article 22(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”), Articles 2(1)4, 22(2)1 and 23(2) of the same Act, and Article 67(1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 10465, Mar. 29, 201); and the overall structure, purpose, purpose, and purpose of the Information and Communications Network Act including Article 67(1) of the same Act, a user, who is the subject of personal information protected under the former part of Article 22(1) of the Information and Communications Network Act, is provided by a provider of information and communications services that intends to collect personal information from the provider of information and communications services,

Articles 2(1)4, 22(1) and (2), 23(2), and 71 subparag. 1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.; Article 67(1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 10465, Mar. 29, 201)

Defendant 1 and five others

Defendants and Prosecutor

Law Firm, Kim & Lee LLC et al.

Seoul Western District Court Decision 2012No10 decided April 5, 2012

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

The crime of violation of Articles 72(1)1 and 48(1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) is established when an intrusion on an information and communications network without legitimate access authority or beyond the permitted access authority (see, e.g., Supreme Court Decision 2011Do5299, Jul. 28, 2011).

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the concept of “influence” under Article 48(1) of the Information and Communications Network Act or the grounds for exemption under Article 75 of the Information and Communications Network Act, thereby adversely affecting the conclusion of the judgment.

2. As to the grounds of appeal by Defendants 2, 3, 4, 4, and 6

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court, on the grounds stated in its reasoning, determined that the facts charged for the intrusion of structures and the charges for the intrusion of information and communications networks against Defendants 4, 4, and 6 may be recognized. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the concept of “influence”

3. As to the Prosecutor’s Grounds of Appeal

A. Article 22(1) main text of the Information and Communications Network Act (hereinafter “instant provision”) provides that, where a provider of information and communications services collects personal information of a user, the purpose of collecting and using personal information (Article 22(1) (Article 1), items of collected personal information (Article 22(1) (Article 2) (Article 22(1)) (Article 22(1)) (Article 22(1))

As can be seen, Article 2(1)4 of the same Act defines “user” as “person who uses information and communications services provided by a provider of information and communications services,” and Article 2(2) of the same Act defines “user” as “the person who uses information and communications services provided by a provider of information and communications services,” and Article 22(2) of the same Act provides for exceptional cases where it is clearly difficult to obtain consent from a user due to economic and technical reasons (Article 1) for the purpose of implementing a contract for the provision of information and communications services where it is necessary for the settlement of charges for the provision of information and communications services (Article 23(2) of the same Act provides that “the provider of information and communications services shall collect necessary information for the provision of information and communications services if it collects personal information of a user, and shall not refuse to provide such services on the ground that it does not provide any other personal information than the minimum necessary information.” Article 22(2) of the same Act provides that “the provider of information and communications services, other than the provider of information and communications services, shall not be subject to the provision of information and communications services.”

In full view of the language and text of the instant provision, including relevant provisions, and the overall structure, purport, and purpose of the Information and Communications Network Act, a user, who is the subject of personal information protected by the instant provision, is deemed to have been provided with information and communications services from a provider of information and communications services that seeks to collect personal information and is premised on the relationship between such provision

B. The court below maintained the first instance court which acquitted Defendant 1 as to the facts charged in violation of the Information and Communications Network Act due to the collection of personal information in violation of the provision of this case, since it is not sufficient to recognize that the right holder of the broadband subscriber's phone number collected by the remaining Defendants, who are the employees of Defendant 1, used the information and communications services provided by Defendant 1.

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is based on the legal principles as seen earlier, and contrary to the prosecutor's grounds of appeal, there were no errors by misapprehending the legal principles as to the provision

4. Conclusion

Therefore, all 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)