The appeal is dismissed.

The grounds of appeal are examined.

1. As to the misapprehension of the legal principles on the distinction between act and omission and the protection of telecommunications secrets

A. Article 3(1) of the former Act on the Protection of Communications Secrets (amended by Act No. 1229, Jan. 14, 2014; hereinafter the same applies) provides that no person shall record or listen to conversations between others that are not open to the public, except in accordance with this Act, Criminal Litigation Act, or the law of the military court. Article 14(1) of the same Act limits the act of listening to such prohibition where he/she uses electronic or mechanical devices. Meanwhile, in violation of Article 16(1) of the same Act, a person who records or listens to conversations between others that have not been open to the public (Article 16(1) and a person who discloses or leaks the contents of conversations he/she has learned pursuant to subparagraph 1 (Article 16(2) of the same Act.

In light of the legislative purport and system, etc. of restricting acts prohibited by the specification of Article 14(1) despite the general prohibition of Article 3(1) on recording or listening to conversations between others, which are not disclosed under the former Act on the Protection of Communications Secrets, the act of violating the prohibition under Article 14(1) of the former Act shall be construed as constituting the act of violating Article 3(1) of the same Act and subject to punishment under Article 16(1)1 of the same Act by falling under Article 3(1) of the same Act, unless there exist special circumstances such as the former Act on the Protection of Communications Secrets and the Criminal Litigation Act or the Military Court Act.

In addition, the purport of Article 3(1) of the former Act that prevents a third party from recording or listening to conversations between others that are not open to the public is that the third party who does not participate in the conversation should not record or listen to the speech between others (see Supreme Court Decisions 2006Do4981, Oct. 12, 2006; 2013Do16404, May 16, 2014, etc.).