CONTENTS
- 1. Violation of the Protection of Communications Secrets Act | Concept
- - Violating Conduct
- - Conduct That Does Not Constitute a Violation
- - Admissibility of Unlawfully Collected Conversation Records
- 2. Violation of the Protection of Communications Secrets Act | Penalty Levels
- - Sentencing Guidelines
- - Penalty Levels as Seen Through Relevant Case Law
- 3. Violation of the Protection of Communications Secrets Act | Methods of Response
- - When Denying the Charges
- - Seeking a Reduction of Sentence
- 4. Violation of the Protection of Communications Secrets Act | When Assistance Is Needed
1. Violation of the Protection of Communications Secrets Act | Concept
A violation of the Protection of Communications Secrets Act refers to the act of recording or listening, without authorization, to a conversation between others that has not been disclosed, and the act of divulging information obtained by such means.
This Act was enacted to protect the secrecy of communications and conversations and to guarantee the freedom of individual communication.
Violating Conduct
Acts that violate the Protection of Communications Secrets Act are as follows.
▶ Censoring mail, wiretapping telecommunications, or providing communication confirmation data
▶ Recording a non-public conversation between others
▶ Listening to a non-public conversation between others using an electronic device or similar means
▶ Using content obtained through unlawful censorship as evidence in a trial or disciplinary proceeding
Conduct That Does Not Constitute a Violation
Recording a conversation in which one personally takes part does not constitute a violation of the Protection of Communications Secrets Act.
For example, recording the contents of a meeting one attended, or recording a phone call conveying work instructions received from a supervisor in order to refer to it for work, does not raise a legal problem.
[Supreme Court, October 12, 2006, Judgment 2006Do4981]
Admissibility of Unlawfully Collected Conversation Records
Mail or telecommunications content that is obtained unlawfully in violation of the Protection of Communications Secrets Act, or by a state agency through censorship or similar means, cannot be used as evidence in a trial or disciplinary proceeding.
In other words, evidence that is collected unlawfully is not recognized as admissible even if its content is true.
This applies equally not only to unlawful wiretapping by a state agency but also to cases in which a private individual unlawfully records another person's communications.
2. Violation of the Protection of Communications Secrets Act | Penalty Levels
The penalties for a violation of the Protection of Communications Secrets Act are as follows.
▷ Article 16 of the Protection of Communications Secrets Act
Conduct | Penalty |
Censoring mail or wiretapping telecommunications |
Imprisonment with labor for not less than 1 year and not more than 10 years and |
Recording or listening to an undisclosed conversation between others | |
Disclosing or divulging the contents of a communication or conversation learned unlawfully |
Sentencing Guidelines
▷ A motive for the offense worth taking into account
▷ Where the harm or damage caused by the offense is minor
▷ Where the offense was committed with willful negligence (dolus eventualis)
▷ Mental and physical weakness (without fault of the offender)
▷ Voluntary surrender, whistleblowing, or full and voluntary disclosure of the entire scope of an organized offense
▷ No wish for punishment, or recovery of damages (including deposit in court)
▷ Genuine reflection
▷ No prior criminal punishment
▷ General cooperation with the investigation
Penalty Levels as Seen Through Relevant Case Law
[Cheongju District Court, judgment of November 11, 2022, 2022 Gohap 247]
The defendant then sent the recording file to a KakaoTalk chat room, and in this process, violation of the Protection of Communications Secrets Act was applied on the charge of recording an undisclosed conversation between others and divulging it.
[Uijeongbu District Court, judgment of September 8, 2021, 2020 Gohap 340]
As a result, this was deemed to be the unauthorized recording of an undisclosed conversation between others, and
3. Violation of the Protection of Communications Secrets Act | Methods of Response
If you have been reported on suspicion of violating the Protection of Communications Secrets Act, you should first clearly ascertain whether your conduct constitutes the 'recording or listening to a conversation between others that has not been disclosed' prohibited by the Act, and in what manner that conduct was carried out.
Along with this, it is necessary to accurately organize the related facts, such as the circumstances of the incident, the subject, the manner of recording or listening, and whether it was transmitted, and to prepare materials that can prove these facts.
Points to note when responding alone
▷ Clearly ascertaining the specific facts of the suspicion from the complaint or the notice from the investigative authority
▷ Organizing the facts with a focus on whether the communication was in a non-disclosed state and whether you took part in the conversation
▷ Preserving and analyzing objective materials related to the incident, such as recordings, text messages, messenger logs, and CCTV
▷ Refraining from emotional words and conduct during the investigation, and responding based on facts
When Denying the Charges
If you conclude that your conduct does not constitute conduct prohibited by the Protection of Communications Secrets Act, you should prepare in advance so that you can clearly explain the reasons during the investigation and trial process.
Points to note when responding on your own
▷ Record the details of how, where, and by what method the recording or listening occurred, and the circumstances at the time
▷ Secure evidence that can support whether the communication was public (an open meeting, the number of attendees, the openness of the location of the conversation, and the like)
▷ Maintain consistent statements in investigative procedures such as the interrogation of the suspect
▷ When submitting evidence, sufficiently review the scope of application and the requirements of the relevant statutes
Seeking a Reduction of Sentence
If you do not contest the charge itself but seek a reduction of sentence at the sentencing stage, it is necessary to build the argument around the circumstances of the act, the motive, the degree of harm, whether there is genuine remorse, and efforts to prevent recurrence.
Whether the actual motive for the recording was a work-related need, and whether there was any external disclosure, may also be considered as sentencing factors.
Points to note when responding on your own
▷ Accurately ascertain whether the recorded content was disclosed externally, the scope of dissemination, and similar matters, and organize the facts
▷ Prepare materials for mitigation, such as a letter of apology, an apology to the victim, and measures to restore the harm
▷ Organize circumstances that may be taken into account in sentencing, such as any criminal record, social foundation, and family situation
▷ Sufficiently prepare procedural responses, such as submitting sentencing materials before the pronouncement of judgment
4. Violation of the Protection of Communications Secrets Act | When Assistance Is Needed
Cases involving violations of the Protection of Communications Secrets Act require a careful approach due to their varied types and complex facts.
In particular, because court interpretations regarding unlawful recording and listening vary, it is advisable to prepare a prompt response from the early stage if you become a suspect.
The firm has many criminal attorneys with an average of more than 10 years of experience, providing comprehensive legal services from the early response to the trial.
The firm also collaborates with its in-house evidence examination center and digital forensics center to promptly assess the legality of evidence related to suspicions of unlawful recording and to prepare a response.
If you are facing difficulties after being involved in a case concerning a violation of the Protection of Communications Secrets Act, please feel free to request the assistance of a criminal attorney at Daeryun Law Firm at any time.
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