[1] The scope of "a person's secret processed, stored, or transmitted by an information and communications network," which is the object of a violation of Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and whether a secret that can be seen as being stored and stored in an information and communications system is included in the scope of "a person's secret processed, stored, or transmitted by an information and communications network" and "a person's secret" under the above provision

[2] The meaning of "violation of another person's secret" and "disclosure" under Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[3] Method of determining whether an act constitutes a legitimate act or self-defense as a ground for the exclusion of illegality / Requirements for recognition as a legitimate act / Whether an act of defense must be socially reasonable (affirmative)

[1] Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network 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 secret.” Article 71(1)11 of the same Act provides that “a person who damages another person’s information or infringes, uses, or divulges another person’s secret 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.”

The purpose of the Information and Communications Network Act is to contribute to the improvement of people’s lives and the promotion of public welfare by facilitating the use of information and communications networks, protecting personal information of persons using information and communications services, and creating an environment in which persons using information and communications networks can use such information in a sound and safe manner (Article 1). The term “information and communications network” refers to an information and communications system that collects, processes, stores, searches, transmits, or receives information by using telecommunications facilities and equipment under Article 2 Subparag. 2 of the Telecommunications Business Act or by using telecommunications facilities and equipment, computers, and computers or computers (Article 2(1)1 of the Telecommunications Business Act). The term “telecommunications equipment and facilities” refers to machinery, apparatus, lines, and other facilities necessary for telecommunications (Article 2 Subparag. 2 of the Telecommunications Business Act). Since the regulatory content of Article 49 of the Information and Communications Network

It is natural that “other’s secret processed, stored, or transmitted through an information and communications network,” which is the object of a violation of Article 49 of the Information and Communications Network Act, includes, but is not limited to, secrets under real-time processing and transmission via an information and communications network, and furthermore, secrets that can be perused or searched only through the processing and transmission of information and communications networks, which are stored and stored in a remote server through an information and communications network. Even if such secrets are stored and stored in a user’s personal computer (PC) following the completion of processing and transmission through an information and communications network, if they can only be perused or searched by using a computer program related to an information and communications network because the processing, transmission, storage and storage are closely connected with each other. This conclusion can be derived in light of the language and text of Article 49 of the Information and Communications Network Act, the concept of information and communications network under the Information and Communications Network Act, its constituent elements and function, legislative purpose of the Information and Communications Network Act, etc.

In addition, the term "other person's secret" under Article 49 of the Information and Communications Network Act means a fact that is not generally known and that does not notify it to other persons, which is an interest to the principal.

[2] “Violation” of another person’s secret under Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) refers to an act of acquiring another person’s secret processed, stored, or transmitted through an information and communications network by unlawful means or method, such as intrusion into an information and communications network. “Leakage” does not mean any act of divulging another person’s secret, but means any act of divulging another person’s secret, such as intrusion into an information and communications network, or an act of informing a person who has acquired another person’s secret processed, stored, or transmitted through an information and communications network of such secret or who knows that it

Article 48(1) of the Information and Communications Network Act prohibits an act of intrusion on an information and communications network without having infringed or damaged protective measures against an information and communications network and without having access authority or beyond permitted access authority. Unlike Article 48 of the Information and Communications Network Act, Article 49 of the same Act does not protect an information and communications network itself, but rather protect other persons’ information or secrets processed, stored, or transmitted through an information and communications network. Therefore, “illegal means or methods, such as intrusion on an information and communications network” required under Article 49 of the Information and Communications Network Act is not limited to the act of illegally inputting another person’s identification mark (i.e., ID and password) or inputting another person’s improper order so that the user may be exempted from restrictions on protective measures. Such act does not constitute an act of acquiring or divulging another person’s secrets by means of using the device or function of an information and communications network without access authority. Such interpretation does not violate the principle of no punishment without law.

[3] Whether a certain act constitutes a legitimate act or self-defense as a ground for the exclusion of illegality ought to be determined reasonably and reasonably depending on specific cases, and whether it is legitimate or not should not go beyond the national order. To be recognized as a justifiable act, the following requirements should be met: (a) legitimacy of the motive or purpose of the act; (b) reasonableness of the means or method of the act; (c) balance between the protected legal interests and the infringed legal interests; (d) urgency; and (e) supplementary requirements that have no means or method other than the act. To establish self-defense, the act of defense should be socially reasonable in light of all specific circumstances, such as the type, degree, method of infringement; and the type and degree of legal interests to be infringed by the act of infringement.

[1] Articles 1, 2(1)1, 49, and 71(1)11 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.; Article 2 subparag. 2 of the Telecommunications Business Act / [2] Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 48, 49, and 71(1)11 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. / [3] Articles 20 and 21 of the Criminal Act

[1] Supreme Court Decision 2005Do7309 Decided March 24, 2006 (Gong2006Sang, 773), Supreme Court Decision 2010Do2212 Decided January 12, 2012 / [2] Supreme Court Decision 2010Do10576 Decided December 13, 2012 (Gong2013Sang, 199), Supreme Court Decision 2013Do15457 Decided January 15, 2015 / [3] Supreme Court Decision 2007Do7096 Decided January 18, 2008

Defendant

Defendant

Law Firm Min-Post, Attorneys Kim Gyeong-hwan et al.

Suwon District Court Decision 2017No262 decided August 30, 2017

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether another person's secrets processed, stored, or transmitted through an information and communications network are infringed or divulged;

A. In this case, the issue is whether the Defendant’s act infringes on and divulges another’s secret, which is processed, stored, or transmitted by means of information and communications networks, as prescribed by Article 49 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”).

(1) Article 49 of the Information and Communications Network Act provides, “No person shall damage another person’s information processed, stored, or transmitted through an information and communications network, or infringe, misappropriate, or divulge another person’s secret.” Article 71(1)11 of the same Act provides, “Any person who damages another person’s information in violation of Article 49 or who infringes, uses, or divulges another person’s secret shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50 million won.”

The purpose of the Information and Communications Network Act is to contribute to the improvement of people’s lives and the promotion of public welfare by facilitating the use of information and communications networks, protecting personal information of persons using information and communications services, and creating an environment in which persons using information and communications networks can use such information in a sound and safe manner (Article 1). The term “information and communications network” refers to an information and communications system that collects, processes, stores, searches, transmits, or receives information by using telecommunications facilities and equipment under Article 2 Subparag. 2 of the Telecommunications Business Act or by using telecommunications facilities and equipment, computers, and computers or computers (Article 2(1)1 of the Telecommunications Business Act). The term “telecommunications equipment and facilities” refers to machinery, apparatus, lines, and other facilities necessary for telecommunications (Article 2 Subparag. 2 of the Telecommunications Business Act). Since the regulatory content of Article 49 of the Information and Communications Network

It is natural that “other’s secret processed, stored, or transmitted through an information and communications network,” which is the object of a violation of Article 49 of the Information and Communications Network Act, includes, but is not limited to, secrets under real-time processing and transmission via an information and communications network, and furthermore, secrets that can be perused or searched only through the processing and transmission of information and communications networks, which are stored and stored in a remote server through an information and communications network. Even if such secrets are stored and stored in a user’s personal computer (PC) following the completion of processing and transmission through an information and communications network, if they can only be perused or searched by using a computer program related to an information and communications network because the processing, transmission, storage and storage are closely connected with each other. This conclusion can be derived in light of the language and text of Article 49 of the Information and Communications Network Act, the concept of information and communications network under the Information and Communications Network Act, its constituent elements and function, legislative purpose of the Information and Communications Network Act, etc.

In addition, the term “other person’s secret” under Article 49 of the Information and Communications Network Act means a fact that is not generally known and that does not notify it to other persons is beneficial to the principal (see Supreme Court Decision 2005Do7309, Mar. 24, 2006, etc.).

(2) “Violation” of another’s secret under Article 49 of the Information and Communications Network Act refers to an act of acquiring another’s secret processed, stored, or transmitted through an information and communications network by unlawful means or method, such as intrusion into an information and communications network (see Supreme Court Decision 2013Do15457, Jan. 15, 2015). “Leakage of another’s secret” does not mean any act of divulging another’s secret, but means only an act of informing a person who has acquired another’s secret processed, stored, or transmitted through an information and communications network, by unlawful means or method, such as intrusion into an information and communications network, or a person who has knowledge that such secret was acquired by the said method, of informing another person of such fact (see Supreme Court Decision 2010Do10576, Dec. 13, 2012, etc.).

Article 48(1) of the Information and Communications Network Act prohibits an act of intrusion on an information and communications network without having infringed or damaged protective measures against an information and communications network and without having access authority or beyond permitted access authority. Unlike Article 48 of the Information and Communications Network Act, Article 49 of the same Act does not protect an information and communications network itself, but rather protect other persons’ information or secrets processed, stored, or transmitted through an information and communications network. Therefore, “illegal means or methods, such as intrusion on an information and communications network” required under Article 49 of the Information and Communications Network Act is not limited to the act of illegally inputting another person’s identification mark (i.e., ID and password) or inputting another person’s improper order so that the user may be exempted from restrictions on protective measures. Such act does not constitute an act of acquiring or divulging another person’s secrets by means of using the device or function of an information and communications network without access authority. Such interpretation does not violate the principle of no punishment without law.

B. (1) The lower court affirmed the first instance judgment, on the following grounds, that the Defendant’s act of reading and copying the instant conversation from the computers of the said victim, which constituted the act of infringing or divulging another person’s secret, and thus, rejected the Defendant’s allegation in the grounds of appeal on erroneous determination of facts and misapprehension of legal principles. The lower court did not accept the Defendant’s allegation in the grounds of appeal on the grounds that the Defendant’s act of transmitting reproduced electromagnetic waves to Nonindicted 2 constitutes an act of infringing or divulging another person’s secret.

(A) The instant communications is private by the victims divided into the instant communications program installed on their own computers, and it is difficult for the victims to share the instant communications with a third party. The victims stored the instant communications in the form of electronic file on the computer hard disc. This constitutes an information and communications network that uses the function of storage provided on the Mesen program and constitutes a confidential processing through an information and communications network.

(B) In order for the victim Nonindicted 1 to re-examine the contents of the instant communications stored as above, it is not allowed for a third party to implement the Messenger program using his own account, and to confirm the contents of the Messenger program with the said victim’s account without any access authority.

(C) The Defendant: (a) connected the victim Nonindicted 1 to keep the instant communications using the instant Messenger program with the victim’s Messenger while using his account; and (b) perused and copied the instant communications with the victim’s Messengerger; and (c) transmitted them to the third party’s computer.

(D) Even if Nonindicted Co. 3 (hereinafter “instant company”) who is the service provider of the instant Messen program using the victims can peruse and confirm the contents of the instant Messenger for disciplinary investigation or trade secrets protection, it is difficult to view that the instant company did not have the authority to peruse and confirm the contents of the instant Messenger communications to the Defendant, who was not related to the operation of the Messenger program, and that it

(2) The lower court’s determination is justifiable in light of the foregoing legal doctrine, and contrary to what is alleged in the grounds of appeal, did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on interpretation of Article

2. Whether the act constitutes self-defense or legitimate act.

Whether an act constitutes a legitimate act or self-defense as a ground for the denial of illegality ought to be determined reasonably and reasonably depending on specific cases, and whether it is legitimate or not should not go beyond the national order. To be recognized as a justifiable act, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method; (iii) balance between the protected legal interests and the infringed legal interests; (iv) urgency; and (v) supplementary requirements that there is no other means or method other than the act. In addition, in order to establish self-defense, the defense act should be socially reasonable, taking into account all specific circumstances, such as the type, degree, method of infringement; (ii) type and degree of legal interests infringed by the act of infringement; and (iii) type and degree of legal interests to be infringed by the act of defense (see Supreme Court Decision 2007Do7096, Jan. 18, 2008).

The lower court determined that the Defendant’s act did not constitute legitimate self-defense or legitimate act, where the illegality of the Defendant’s act is excluded. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on self-defense

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)