Defendant

Defendant and Prosecutor

B. dilution (prosecution), Jintein (Public Trial)

Attorney Han Han-chul

Seoul Central District Court Decision 2012Gohap419 Decided April 5, 2013

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

1. Summary of grounds for appeal;

A. Defendant

1) ① As to the violation of the Act on the Protection of Personal Information by Public Agencies against ○ University around April 8, 201, among the facts charged in the instant case, the Defendant did not misrepresent Nonindicted 3 to the election commission, and the Defendant indicated that he was the same representative. When the entry of false academic background is confirmed, Nonindicted 1 may be dismissed from the same representative. This is not a false or other unlawful means. ② Of the facts charged in the instant case, on April 8, 2011, the part of the violation of the Act on the Protection of Personal Information by Public Agencies against △△ University, excluding the portion of false remarks made to Nonindicted 2 cannot be deemed the same representative election. However, the lower court convicted the Defendant of this part of the facts charged on the basis of the non-liability evidence. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2) Since the Act imposes an obligation not to provide managed information to a public institution, and the public institution requested to provide information has a duty to examine whether the above seven grounds for disclosure exist, the penal provision of this case is a provision for punishing the case where personal information is acquired to the extent that the examination would not be properly conducted as if the above seven grounds for disclosure existed. Since the representative election of the apartment building, which is the grounds for disclosure of the defendant, does not constitute the above seven grounds for disclosure, the above seven grounds for disclosure, the court below convicted the defendant of this part of the facts charged, notwithstanding the absence of causation between the defendant's act and the provision of information. The court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.

(b) Prosecutors;

1) misunderstanding of facts or misapprehension of legal principles

① As to the violation of the Act on the Protection of Personal Information of Public Institutions around April 21, 201, among the facts charged in the instant case, Article 2(3) of the Act on the Protection of Personal Information of Public Institutions provides that search process shall also be conducted, the information recorded as well as the information that does not fall under the search result shall be included in the managed information as prescribed by the said Act. ② As to the part of the violation of the Act on the Protection of Personal Information of Public Institutions related to △△ University around April 8, 2011, the part on which Non-Indicted 2 made a false statement to the investigation agency is credibility than Non-Indicted 2’s legal statement. Thus, the court below acquitted the Defendant of each of the facts charged, despite the fact that the public institution was provided with the managed information about the academic background of Non-Indicted 1 from △△ University by fraud or other improper means, the court below erred in the misapprehension

2) Unreasonable sentencing

Punishment (1.5 million won of a fine) declared by the court below is too unhued and unfair.

2. Determination:

A. Ex officio determination

On April 21, 2011, with respect to the violation of the Act on the Protection of Personal Information by Public Institutions, the prosecutor kept the previous facts charged and applied for the amendment of a bill of amendment to the Resident Registration Act in the preliminary name, and applied for the following [the reason for the judgment to be issued] as the preliminary charges, and the following (the reason for the judgment to be issued] as the preliminary charges. Since the judgment was modified by the court, the judgment of the court below cannot be maintained.

B. Determination on the assertion

Even if there are such reasons for ex officio reversal in the judgment of the court below, the defendant and the prosecutor's assertion of mistake of facts and misapprehension of legal principles as to the remaining facts charged except the above ancillary facts are still subject to the judgment

1) Of the facts charged in the instant case, on April 8, 2011, the part on the charge, excluding the part on which Nonindicted 2 made a false statement among the violation of the Act on the Protection of Personal Information by Public Institutions against ○ University and the violation of the Act on the Protection of Personal Information by Public Institutions against △△ University around April 8, 201.

① As properly explained by the lower court, the case of verification of each school record of ○○ University and △△ University (No. 11,85 of the investigation record) states that “The curriculum of the candidate for the representative of each Dong in this field has been received,” as well as that of Nonindicted 1’s resident registration number, major, degree course, etc.; ② in the case of ○○ University, the first reply (No. 10 of the investigation record) of Nonindicted 1, the chairman of the election management commission states that “the election commission was the person who returned to the election commission” in the resume (No. 80 of the investigation record) of Nonindicted 1, which additionally sent by the Defendant, indicated that Nonindicted 3 was present in the lower court as a witness in court and expressed as the addressee of the election management in accordance with the telephone contents of the Defendant who substituted for the curriculum and election commission; ③ in the case of △△ University, Nonindicted 1’s certificate of master’s degree granting (no. 9 of the election commission’s personal status) was attached to △ University.

In addition, Article 10(1) of the former Act on the Protection of Personal Information of Public Institutions (amended by Act No. 10465, Mar. 29, 201; hereinafter “the former Act”) recognizes exceptions to Article 10(3) of the same Act, which imposes, in principle, the duty not to use or provide managed information to the institution holding managed information, is only a provision on the duty of the institution holding managed information. ② Article 23(3) of the former Act does not explicitly stipulate the violation of Article 10 as a provision punishing the person who inspected or received managed information. ③ The purpose of the former Act is to promote the proper performance of public affairs and to protect the rights and interests of the public (Article 1), and Article 10(3) of the former Act is to be provided with managed information by other improper means than pretending that there are grounds for exceptions under Article 10(3) of the same Act (for example, where the defendant, while inspecting the criminal record of his own criminal trial, could not be deemed to have been provided with the criminal record of another person who is co-defendantd with one’s criminal records.)

Therefore, the defendant's assertion is without merit.

2) Of the instant facts charged, on April 8, 2011, on the part that Nonindicted 2 made a false statement in violation of the Act on the Protection of Personal Information by Public Institutions to △△ University

The summary of this part of the facts charged is that on April 12, 2011, the defendant stated that "the non-indicted 1 is a candidate for the Dong election of the apartment complex in Korea and the defendant is not a representative of the election management committee of the apartment complex, so there is no problem since the defendant is not a representative of the election management committee of the apartment complex." Thus, the evidence submitted by the prosecutor alone is insufficient to recognize that the defendant was a false speech to the non-indicted 2, as stated in this part of the facts charged, and there is no other evidence to acknowledge that the defendant was a false speech to the non-indicted 2, as stated in this part of the facts charged. Thus, the fact-finding and the judgment of the court below which acquitted the non-indicted 2 on this ground is justified, and the prosecutor's allegation in this part is not reasonable, and it is not erroneous in the misapprehension of facts as pointed out by the prosecutor, thereby affecting the conclusion of the judgment.

3) As to the violation of the Act on the Protection of Personal Information of Public Institutions around April 21, 201, among the facts charged in the instant case

A) Summary of this part of the facts charged

around April 21, 2011, the Defendant: (a) sent the case of Nonindicted 4’s school affairs management team in Do○ University, located in Seoul, to Nonindicted 4, and was provided with the above Nonindicted 1 with an academic reply to the purport that he did not know of the fact on the same day; and (b) the Defendant was provided with the above Nonindicted 1’s school affairs management team in the name of the head of YYU at Do○ University, which was prepared in the name of Nonindicted 4, in the name of the head of Do○ University, in order to inquire Nonindicted 1 about the employment of employees at the office of Do○○○ Office, where the Defendant located in Guro-gu, Seoul ( Address 1 omitted) as the president; and (c) received the above managed information on the academic background of Do○ University, a public institution, by fraud or other improper means.

B) The judgment of the court below

Article 23(3) of the former Act punishs a person who was inspected or provided with managed information by a public institution by fraud or other improper means, and “management information” is personal information recorded in an electronic medium. The evidence submitted by the prosecutor alone alone determined that the Defendant was innocent on the ground that there is insufficient evidence to acknowledge that there was personal information recorded in the electronic medium with respect to Nonindicted 1.

C) Determination of the immediate deliberation

The term "personal information" in Article 2 of the former Act refers to information about a living person, including the name, resident registration number, image, etc. included in the relevant information, which can identify the individual (including information that can be easily combined with other information even if the relevant information alone does not identify a specific individual), and the term "processing" refers to the act of inputting, saving, editing, searching, deleting, or printing information using a device with functions of transmitting or receiving information such as a computer or closed-circuit television (hereinafter referred to as "computer, etc.") or other similar acts: Provided, That this does not include acts prescribed by Presidential Decree as acts for simple processing of affairs such as preparing a door only ( subparagraph 3), and the term "personal information file" means that personal information is systematically composed of personal information files that can be processed by a computer, etc. and recorded in an electronic medium such as magnetic tape, magnetic disc, etc., and the term "information processing information" in this case means that the defendant cannot be found to have been found to have been illegally recorded or otherwise used by a prosecutor in violation of Article 23 (1) and (2) of the former Act.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, and the judgment below is reversed and it is again decided as follows.

The facts constituting the crime acknowledged by this court are the same as stated in the corresponding column of the judgment below except for adding the following "3..." to the facts constituting the crime of the judgment below pursuant to Article 369 of the Criminal Procedure Act.

“3. On April 21, 201, the Defendant sent Nonindicted 1’s resident registration number to Nonindicted 1 on the “written public notice of Nonindicted 1’s request for confirmation of the school inquiry” in the name of Nonindicted 1, which was prepared by the Defendant in Guro-gu Seoul ( Address 1 omitted), as the president of the distribution complex office in which he works as the president, in relation to the employment of employees, after entering Nonindicted 1’s resident registration number into the school inquiry system through Nonindicted 1’s person in charge of the school inquiry team of the Seocho-gu University, which was located in Seoul ( Address 2 omitted), without Nonindicted 1’s consent, and then illegally used Nonindicted 1’s resident registration number on the same day by illegally entering Nonindicted 1’s resident registration number into the school inquiry system through Nonindicted 1’s person in charge of the school inquiry team of the Seocho University.”

1. The defendant's partial statement in court below

1. The statement of Non-Indicted 4 by the witness of the court below

1. Among the third trial records of the court below, the witness Nonindicted 3 and Nonindicted 2’s statement in the fifth trial records among the witness Nonindicted 1 and the fourth trial records.

1. Investigation protocol of Nonindicted 5 by the prosecution

1. The case of verification of each scientific inquiry [the name of ○○○, the other party to ○○○○ apartment (former Dong-dong-dong-dong-dong-dong-dong-dong), the name of △△△ apartment-dong-dong-party to △△△△△-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si, and the name of the chairperson of △△△△△△-dong-dong-dong

1. A reply to academic background inquiry (the name of the school affairs support team of the school affairs of the ○○ University, the name of the head of the school affairs division of the △ University on April 21, 201);

1. Scientific inquiry reply (the name of the head of the administrative graduate school at △ University on April 12, 201);

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 23(3) of the former Act on the Protection of Personal Information of Public Institutions (Amended by Act No. 10465, Mar. 29, 201); Article 37 Subparag. 10 of the Resident Registration Act; Article 34(1) and Article 31(1) of the Criminal Act (elective Selection)

1. Aggravation for concurrent crimes;

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

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

In light of the following circumstances acknowledged by the court below and the evidence duly adopted and examined by the court below, i.e., ① the defendant sent documents with the name and resident registration number of Non-Indicted 1 to the person in charge of Non-Indicted 1, who pretended to employ employees without permission, and ② The above person in charge entered Non-Indicted 1’s name and resident registration number into the school inquiry system to confirm Non-Indicted 1’s school register, it is reasonable to deem that Non-Indicted 1 used his resident registration number for a specific purpose without permission.

1. Summary of the assertion

As to the violation of the Act on the Protection of Personal Information of Public Institutions around April 21, 201 among the facts charged in the instant case, the previous facts charged and the subsequent facts charged after the modification exceed the limit of the identity of the facts charged, but it is unlawful to allow the modification of the Act.

2. Determination:

The prosecutor may add, delete, or modify the facts charged or the applicable provisions of Acts stated in the indictment with the permission of the court within the scope not impairing the identity of the facts charged. The identity of the facts charged is maintained if the social facts, which form the basis of the facts charged, are the same in the basic point of view. In determining the identity of these basic facts, the defendant’s act and the social factual relations shall be based in mind with the function of the identity of such facts, and normative elements shall also be taken into account (see Supreme Court Decision 2009Do9593, Jun. 24, 2010).

According to the records, on April 21, 201, the summary of the facts charged in this part of the facts charged was provided by the defendant to the above non-indicted 1's resident registration number of the above non-indicted 1's academic background by being provided with an academic inquiry meeting to the effect that the non-indicted 1 sent to the non-indicted 4 team leader of the school affairs management team of the △△△△△ University, which was prepared as if the defendant, located in Guro-gu, Seoul ( Address 1 omitted)'s office located in the chairman to inquire about the employee recruitment of the non-indicted 1's office in relation to the employment of the defendant. The non-indicted 1 sent the above non-indicted 1's resident registration number to the "non-indicted 1's school affairs management team to the non-indicted 1's school affairs team" without the non-indicted 1's consent to the "non-indicted 1's school affairs team to the above non-indicted 4's school affairs team."

Examining the content of the amendment of this part of the facts charged as seen above, the facts charged before and after the amendment are merely a specific statement on the Defendant’s act committed on the same object at the same time and place, and on the perception of the circumstances of the subject, the facts charged before and after the amendment are identical to the social facts constituting the basis of the facts charged, and thus, within the scope of identity of the facts charged.

Therefore, the above assertion by the defense counsel is without merit.

The crime of this case was committed in the course of Non-Indicted 1’s participation in the election of the chairman of the council of occupants’ representatives, and the motive thereof was to be taken into account. However, the crime of this case was committed by the defendant who misrepresented to the same election commission or obtained personal information by pretending to employ employees. The crime of this case was committed by attaching a reply to the academic records of ○○ University, which is the chairman of the election management committee, to acquire the non-indicted 1’s bachelor’s degree-related academic information on △△ University after the crime of this case. The method was used by the recipient to attach a reply to the academic records of ○ University, which is the chairman of the council of occupants’ representatives, or by stealing the non-indicted 5’s council of occupants’ representatives, but was committed as attempted by the refusal of △△ University, taking into account the defendant’s age, character and behavior, character and environment, motive, means and consequence of the crime, and the circumstances after the crime.

Of the facts charged in the instant case, among the violations of the Act on the Protection of Personal Information by Public Institutions to △△ University around April 8, 201, the summary of the facts charged is as stated in the former part of Article 2-B(2). As seen in the latter part of Article 2-B(2) of the Criminal Procedure Act, since this part of the facts charged falls under a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found to be guilty of violating the Act on the Protection of Personal Information by Public Institutions to △△ University around April 8, 2011, the gist of the facts charged as to the violation of the Act on the Protection of Personal Information by Public Institutions around April 21, 2011 is the same as stated in Article 2-B(3)(b) of the instant facts charged in the instant case, the facts charged constitute a violation of the first sentence or Article 325(c) of the Criminal Procedure Act.

Judges Jeon Soo-hun (Presiding Judge)