In a case where the Defendant, an operator of a child-care center, was indicted on charges of the violation of the Infant Care Act that he/she caused damage to CCTV video information by causing the CCTV repairer to replace the video images of closed-circuit television (CCTV) installed in the child-care center because he/she left Gap because he/she failed to take necessary measures to ensure safety under Article 15-5 (3) of the same Act, and thereby, he/she was found guilty on the ground that it is recognized that the Defendant failed to take necessary measures to ensure safety under Article 15-5 (3) of the same Act and thereby damaged the video information.

When the Defendant, who is the operator of a child-care center, was asked from the parents of the original 5 years old, to show the video images of the closed-circuit television installed in the child-care center (hereinafter referred to as “CCTV”), and was indicted as the primary charge of violating the Infant Care Act (hereinafter referred to as the “Act”), that the CCTV repairer caused damage to the video information of CCTV by concealing the video information by means of using the storage device to replace the computer hard disc, which is a storage device recorded and stored, and by dumping the storage device.

The case holding that the operator of a child-care center is obligated to take certain measures provided for in Article 20-8 of the Enforcement Decree of the Act and public notice on the sea level, etc. of closed-circuit television (No. 2015-171, hereinafter “public notice”) upon delegation by the operator of the child-care center to prevent the loss, theft, leakage, alteration, or damage of CCTV information installed in the child-care center pursuant to Article 15-5 (3) of the Act, and the above measures are to be kept in a demarcated place where the access to the storage device is restricted; the storage device is to be stored in the cases where it is difficult to damage the storage device if the storage device is insufficient; the punishment under Article 54 (3) of the Act is on the premise that there is a violation of the duty provided for in Article 15-5 (3) of the Act (hereinafter referred to as “the act of the operator of the child-care center is not a violation of the duty to keep the CCTV installed at a restricted place of storage, and thus, the defendant is not a person who has been obliged to keep the storage device.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 15-4(1) and (3) of the Infant Care Act; Articles 15-5(3), 54(3), and 56(2)4 of the Infant Care Act; Article 20-8 of the Enforcement Decree of the Infant Care Act

Defendant

Prosecutor

Seo-won et al. and one other

Law Firm Suh, Attorney Kim Tae-tae

Ulsan District Court Decision 2018Ra1724 decided December 5, 2018

The judgment of the court below is reversed.

A defendant shall be punished by a fine of five million won. If the defendant does not pay the above fine, the defendant shall be confined in a workhouse for a period of one hundred thousand won converted into one day.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

1. Summary of the grounds for appeal;

Article 54(3) of the Infant Care Act provides that “A person who has lost, stolen, leaked, altered, or damaged video information by failing to take necessary measures for ensuring safety” shall be construed as including not only a person who has damaged video information but also a person who has damaged video information by himself/herself as a result of failing to take necessary measures for ensuring safety. Nevertheless, since “a person who has damaged video information by himself/herself” is not “a person who has damaged”, the court below acquitted him/her of the facts charged of this case as a result of the interpretation that

2. Ex officio determination

Before the prosecutor's judgment on the grounds for appeal, the prosecutor shall examine the facts charged of the violation of the Infant Care Act, which the court below found not guilty on the ground of the judgment of the court below, and shall maintain the facts charged of the violation of the Infant Care Act as the primary facts charged, and shall apply for the amendment of the indictment to add "Article 71 subparagraph 6 and Article 59 subparagraph 3 of the Personal Information Protection Act" to the name of the crime, and "Article 71 subparagraph 6 and Article 59 subparagraph 3 of the same Act" to the applicable provisions of the Act, respectively. Since this court permitted this and

However, despite the above reasons for ex officio destruction, the prosecutor's assertion of misapprehension of the legal principles on the primary facts charged is still subject to the judgment of this court, and this is examined below.

3. Determination on the grounds for appeal

A. Main facts charged

A person who has established and operates a child-care center shall install and manage closed-circuit televisions for the safety of infants, such as prevention of child abuse, and for the security of child-care centers, and shall take technical, administrative and physical measures necessary to ensure stability, such as the formulation of internal management plans and keeping access records, so that video information of closed-circuit televisions is not lost, stolen, leaked, altered, or damaged.

On November 22, 2017, the Defendant, who operated the “○○○ Child Care Center” located in Ulsan-gu ( Address omitted), was found to have caused the damage to the devices in which the rest of the video recording that concern the cancellation of public child care centers is stored, as the Defendant was demanded to change the contents of CCTV recording from Nonindicted Party 1 (age 5)’s parents attending the “△△△△△△△△△△△△△△△△△△” to leave Nonindicted Party 1 as he left Nonindicted Party 1.

The Defendant did not take any measures to ensure the safety of video information stored in the closed-circuit storage device installed in the above closed-circuit office, and had Nonindicted Party 2, a CCTV repairer, replace the above closed-circuit storage device on November 26, 2017, and concealed the storage device where the video information recorded before it is replaced, thereby entirely eliminating the video video information prior to November 26, 2017.

Accordingly, the defendant damaged video information of closed-circuit television.

B. The judgment of the court below

1) The lower court acknowledged the following facts based on the evidence duly admitted and investigated by the lower court.

On November 22, 2017, the Defendant changed the video image of the closed-circuit television installed in the childcare center (hereinafter referred to as “CCTV”). On November 26, 2017, around 10:00, the Defendant demanded Nonindicted 2, who was the parent of Nonindicted 1, who was attending the childcare center in the Defendant’s operation, to replace the closed-circuit television (hereinafter referred to as “CCTV”), and requested Nonindicted 2, who was directly a CCTV repairer, to replace the recorded computer hard disc. At around 12:00 on the same day, Nonindicted 2 replaced the hard disc as requested by the Defendant at the above childcare center, and the Defendant did not submit to the investigation agency, claiming that Nonindicted 2 laid off the hard disc in which the sound images received from Nonindicted 2 were stored.

Since then, the defendant did not keep video information under Article 15-4 (3) of the Infant Care Act for 60 days due to the act of not keeping the video information under Article 15-4 (2) of the Infant Care Act, and was imposed an administrative fine of 400,000 won by the head of the Dong-gu Busan Metropolitan City pursuant to Article 56 (2) 4 of the same Act, and paid an administrative

2) The lower court interpreted Article 54(3) of the Infant Care Act as follows.

Article 15-5(3) of the Infant Care Act provides that “The person who establishes and operates a child care center shall take technical, administrative, and physical measures necessary to ensure the safety of CCTV installed to prevent the loss, damage, etc. of video information.” Article 54(3) of the same Act provides that “A person who loses, steals, leaks, alters, or damages video information due to his/her failure to take necessary measures to ensure safety pursuant to Article 15-5(3) shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 20 million won.” As such, Article 54(3) of the Infant Care Act provides that “The phrase of Article 54(3) of the same Act does not take necessary measures to ensure the safety of CCTV installed by a person who establishes and operates a child care center, thereby punishing an operator of a child care center whose video information is damaged due to his/her violation of the duty of care shall not be punished by applying the aforementioned provision.

Meanwhile, even though the Infant Care Act provides that a person who does not keep video information for 60 days for a minor fine for negligence (Article 56(2)4 of the aforementioned Act), if he/she fails to take necessary measures to ensure safety, thereby imposing a penalty on a person who loses, steals, leaks, alters, or damages video information by negligence (Article 54(3) of the aforementioned Act). Therefore, even though the relevant provisions are somewhat confused with the previous penal provisions regarding the seriousness of sanctions, it appears to be insufficient for legislation, it cannot be interpreted in a way unfavorable to the defendant beyond the possible meaning of the text of Articles 54(3) and 15-5(3) of the Infant Care Act.

3) Ultimately, the lower court determined that even if based on all evidence submitted by the prosecutor, it is difficult to view that the primary charge of the instant case is proven, and there is no other evidence to acknowledge it, and that the Defendant was acquitted pursuant to the latter part of Article 325

C. The judgment of this Court

1) Relevant provisions

Article 15-5 (Prohibition, etc. of Access to Video Information)

(3) A person who establishes and operates a child-care center shall take technical, administrative and physical measures necessary to ensure safety, such as formulation of an internal management plan and keeping access records, as prescribed by Presidential Decree, to prevent the video information referred to in Article 15-4 (1) from being lost, stolen, leaked, altered, or damaged.

Article 20-8 (Measures to Secure Safety of Video Information)

(1) A person who establishes and operates a child-care center shall take the following measures necessary to ensure the safety of video information pursuant to Article 15-5 (3) of the Act:

1. Measures to keep access records and prevent forgery and alteration thereof in order to cope with any intrusion on video information;

2. Measures to control access to video information and to restrict access authority;

3. Measures to formulate and implement an internal management plan to safely process video information;

4. Physical measures, including the preparation of storage facilities or the installation of locking devices, to safely keep video information;

(2) Detailed matters necessary to ensure the safety of video information under paragraph (1) shall be determined and publicly announced by the Minister of Health and Welfare.

Ministry of Health and Welfare Notice No. 2015-171 (Public Notice: Notice on the sea level, etc. of closed-circuit televisions) on September 25, 2015

2. Details of measures to ensure safety of video information;

(c) Physical measures to be taken for the safe keeping of video information pursuant to Article 15-5 (3) of the Act and Article 20-8 (1) 4 of the Decree shall be as follows:

(i) the storage device shall be kept in a demarcated place with limited access;

(ii) install locking devices in storage facilities of the storage system;

(iii) keep the storage equipment in cases where there is a shortage of separate space to keep the storage equipment by placing them in such cases as are difficult to damage the storage equipment.

Article 54 (Penal Provisions of the Infant Care Act)

(3) A person who loses, steals, leaks, alters, or damages video information by failing to take necessary measures to ensure safety under Article 15-5 (3) shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 20 million won.

2) Interpretation of Article 54(3) of the Infant Care Act

A) Article 15-5(3) of the Infant Care Act (hereinafter “Act”) provides that a person who establishes and operates a child-care center (hereinafter “operator of a child-care center”) shall take certain measures to ensure the safety of CCTV information installed in a child-care center. Article 54(3) of the Act provides for punishment for violations of the duty to take such measures. Thus, in interpreting Article 54(3) of the Act, Article 15-5(3) of the Act need not be considered.

In order to prevent video information from being lost, stolen, leaked, altered, or damaged pursuant to Article 15-5 (3) of the Act, the operator of a child-care center is obligated to take certain measures prescribed in Article 20-8 of the Enforcement Decree of the Act and the Public Notice on the Sea Roads, etc. of Closed-circuit Television (hereinafter referred to as the "Public Notice") according to delegation.

In addition, the above measures include that storage devices should be stored in a demarcated place with limited access, and that storage devices should be stored in cases where separate spaces for storage are insufficient, which are difficult to damage storage devices.

Therefore, if the operator of a child care center fails to keep the storage device as above and the video information is not lost, stolen, leaked, altered or damaged as a result, it shall be interpreted that he/she may be punished by imprisonment for not more than two years or by a fine not exceeding twenty million won pursuant to Article 54(3) of the Act.

I will examine more specifically below, and more specifically.

B) Punishment under Article 54(3) of the Act is premised on the violation of the duty stipulated in Article 15-5(3) of the Act (hereinafter “the failure to take necessary measures to ensure safety”). Inasmuch as it can be evaluated as a breach of the duty stipulated in the notice of any act or measure by a child care center operator, whether the act or measure by the child care center operator is an act or omission or not. Therefore, even in cases where the child care center operator disposes of the storage device, as well as in cases where the child care center operator stores the storage device in other places, such act constitutes a violation of the duty to keep the storage device at a demarcated place where access to the storage device is restricted.

C) In light of Article 15-5(3) of the Act, the duty to take necessary measures to ensure safety is to ensure safety in order to prevent loss, theft, leakage, alteration or damage of video information, and Article 54(3) of the Act is a penal provision in the case of violation of such duty, it is reasonable to deem that “a person who has lost, stolen, leaked, altered or damaged video information” means “a person who has not lost, stolen, leaked, altered or damaged video information so that it does not cause loss, theft, leakage, alteration or damage.” In other words, the subject of “damage” in Article 54(3) of the Act refers to “a person who has lost, stolen, leaked, altered or damaged video information” and “the subject of “the person who has lost, leaked, altered or damaged video information” is “the subject of “the video information”, and the operator of a child care center violates the duty to keep the storage device at a partitioned place by dumping, etc. the storage device at will, and thereby has not lost, leaked, altered or damaged the video information.”

D) In the case of a child care center operator’s active act, such as dumping or destroying the storage device, the outcome caused by such act is that the video information contained in the storage device is damaged. The act of a child care center operator’s dumping or destroying the storage device constitutes a violation of the duty to keep the storage device in the partitioned place, and the video information as a result of such violation is damaged. In such a case, it seems sufficiently possible to express that “the video information is lost, stolen, leaked, altered, or damaged because the operator of the child care center fails to take necessary measures to ensure safety (such as the language of Article 54(3) of the Act).” Thus, “the video information is lost, stolen, leaked, altered, or damaged” under Article 54(3) of the Act means “the video information of the child care center operator is lost, stolen, leaked, altered, or damaged,” and such interpretation does not seem to deviate from the scope of possible interpretation in a literal sense or to expand it to the disadvantage of the defendant beyond the possible meaning of the text.

E) Ultimately, insofar as an act or omission by a child care center operator is evaluated as a violation of a public notice that does not take necessary measures to ensure safety, if the video information of the child care center operator is damaged due to such act or omission, it may be punished by applying Article 54(3) of the Act in such cases.

3) Determination on the instant case

According to the evidence duly adopted and examined by the court below, the defendant's act of hiding CCTV images installed in the child care center operated by him by means of dumping a video hard disc, etc., and the defendant's act of actively hiding the hard disc in which the video information is stored constitutes violation of Article 2-3 (1) (the "storage device shall be stored in a partitioned place with limited access) or (3) (the "storage device shall be stored in cases where there is insufficient separate space for storing the storage device, and shall be stored in cases where it is difficult to damage the storage device). The CCTV video information of the child care center operated by the defendant was damaged as a result of the defendant's act of hiding the storage device.

Therefore, since the Defendant did not take necessary measures to ensure safety pursuant to Article 15-5(3) of the Act and it is sufficiently recognized that video information was damaged, the primary facts charged in the instant case are guilty.

An appeal by a prosecutor shall be well-grounded.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment below is reversed and it is again decided as follows (Provided, That as long as it is found guilty of primary facts charged, the judgment of the court below is not separately judged as to the primary facts charged).

The facts constituting the crime recognized by this court are as described in the above 3-a (a).

1. Each police interrogation protocol against the accused;

1. The first police statement against Nonindicted 3

1. The police statement of Nonindicted Party 2

1. Report on internal investigation (referring to CCTV and interview with the head of ○○ Child Care Center);

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

Articles 54 (3) and 15-5 (3) of the Infant Care Act, the selection of fines

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The following circumstances shown in the records and pleadings of this case shall be determined as ordered by taking into account the defendant's age, character and conduct, environment, motive and background of crime, means and consequence of crime, and the circumstances after the crime was committed.

The circumstances favorable to ○: The defendant has no power to impose criminal punishment.

The crime of this case was committed by the Defendant, who directly operates a child-care center, and was obligated to appropriately keep the storage device containing video information and its information in accordance with the relevant provisions in order to perform his/her duty to protect children, but rather, was concealed by means of dumping the storage device, etc., which would cause damage to video information by using the storage device, etc., in order to request the parents to show the contents of the CCTV of the child-care center, and the crime is not very good in light of the background and method of the crime. It seems that the procedure of the trial is erroneous

Judges Kim Hyun-hwan (Presiding Judge)

Note 1) The premise that such an act is evaluated as a violation of the notice.