The defendant shall be innocent.

1. The Defendant is a person who works as a counselor at the organization B at the beginning of the charge.

No person shall record a conversation between others that is not open to the public.

Nevertheless, around March 5, 2018, the Defendant recorded D and E dialogue using his cell phone recording function in the first floor office of the first floor of the Seocho-si branch of the building of the Seocho-si branch of the organization B located in the Seocho-si.

2. 1) The Defendant and the defense counsel’s assertion that the time and place indicated in the facts charged were accompanied by two employees, other than D and E, and that the conversation was made under the circumstances where other employees, including the Defendant, were able to hear all, and the above conversation cannot be deemed to be “unpublicized conversation.” As such, the Defendant’s act constitutes a justifiable act, given that the Defendant’s conversations D and E with respect to the work process of organization B, and recorded the conversation to obtain assistance in the performance of duties.

3. Determination

A. Article 3(1) of the Protection of Communications Secrets Act (hereinafter “Act”) requires that the principle of no punishment without the law shall be determined by law in order to protect individual freedom and rights from arbitrary exercise of the State’s penal authority. In light of such purport, penal provisions ought to be strictly interpreted, and the interpretation of penal provisions ought to be overly expanded or analogically interpreted in the direction unfavorable to the defendant is not permissible as it is contrary to the principle of no punishment without the law (see, e.g., Supreme Court Decision 2015Do17847, Mar. 10, 2016). (2) The Protection of Communications Secrets Act (hereinafter “Act”) was enacted for the purpose of protecting the confidentiality and freedom of communications and dialogue. Article 3(1) of the Act is “any person”, without governed by this Act, the Criminal Procedure Act, or the Military Court Act, to wiretapping mail censorship or provide communication confirmation data.