Constitutional Court Rules "Malicious Program Distribution" Punishment Under Network Act Constitutional... Quick Service Dispatch System Modification Program Seller's Constitutional Complaint Dismissed

Constitutional Court Grand Bench.../Photo by Hyunmin Kim kimhyun81@

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Constitutional Court has ruled that the legal provisions prohibiting the distribution of malicious programs that interfere with the operation of other programs and punishing violations do not violate the Constitution.

This is the first Constitutional Court decision to determine that the legal provisions prohibiting and punishing the distribution of malicious programs in information and communication systems do not violate the Constitution.

The Constitutional Court announced on the 20th that it delivered a unanimous ruling upholding the constitutionality of Article 48, Paragraph 2, and Article 71, Item 9 of the pre-amendment Act on Promotion of Information and Communications Network Utilization and Information Protection (Information and Communications Network Act), in a constitutional complaint case filed by A and B, who were indicted for developing a program that caused errors in a quick service dispatch program and selling it to quick service drivers, received guilty verdicts in the first trial, and appealed, claiming that these provisions violate the principle of clarity under criminal law and infringe on freedom of occupation and general freedom of action.

Article 48 (Prohibition of Acts that Infringe on Information and Communications Networks), Paragraph 2 of the Information and Communications Network Act states, "No one shall transmit or distribute programs (malicious programs) that can damage, destroy, alter, forge information and communication systems, data, or programs without justifiable reason or interfere with their operation."

Also, Article 71 (Penalties), Item 9 of the same law stipulates that anyone who violates Article 48, Paragraph 2 by transmitting or distributing malicious programs shall be punished by imprisonment for up to five years or a fine of up to 50 million won.

The petitioners, A and others, were caught after developing and selling a program that partially modified the source code of the quick service dispatch program developed and operated by Company C to shorten dispatch times and prevent penalties from being applied even if quick service drivers canceled orders.

A and others installed the program for quick service drivers at a cost of 60,000 won per unit per month, and it was investigated that they sold it a total of 5,194 times over 13 months from May 2015 to June 2016.

A and B, who were brought to trial, were sentenced in November 2017 to 10 months imprisonment with a two-year probation and a fine of 2 million won, respectively, and appealed.

During the appeal trial, the two applied to the court for a constitutional review, arguing that the provisions of the Information and Communications Network Act, which were the basis for their punishment, violated the principle of clarity and infringed on freedom of occupation, but when the court dismissed the request, they directly filed a constitutional complaint with the Constitutional Court.

The Constitutional Court first addressed the petitioners' claim that the concept of "interference with operation" in Article 48, Paragraph 2 of the Information and Communications Network Act is unclear, stating, "The provision under review prohibits the distribution of programs that can interfere with the operation of information and communication systems but does not separately define the concepts of 'operation' and 'interference.'"

However, the Court pointed out, "Since the information and communication systems, data, and programs subject to 'interference with operation' vary in form and usage and continuously change due to technological development, and the methods of interference also continuously change, it is difficult to specify these concretely in the provision under review, and this should be resolved through reasonable interpretation of the provision."

It added, "On the other hand, people with sound common sense and ordinary legal sensibility can sufficiently understand whether an act falls under the elements of the provision under review, and it is difficult to see that the meaning of 'can interfere with operation' is excessively vague to allow arbitrary interpretation by law enforcement agencies," concluding that it does not violate the principle of clarity under the principle of legality.

In particular, the Court referred to a Supreme Court ruling stating that whether a program qualifies as a malicious program should be judged based on the program itself, comprehensively considering its intended use, technical composition, operating method, impact on information and communication systems, and whether the operator consented to the installation of the program.

The Court also ruled that the provisions do not excessively infringe on the petitioners' freedom of occupation and general freedom of action. When judging whether there is a fundamental rights infringement violating the principle of proportionality, the Court examines ▲legitimacy of purpose ▲appropriateness of means ▲minimal infringement ▲balance of interests. In this case, the Court found that the legitimacy of the legislative purpose and appropriateness of the means are recognized, and the public interest protected outweighs the private interests infringed upon.

The Court first stated, "In the reality of rapidly increasing use of information and communication networks, prohibiting and punishing the distribution of malicious programs to create an environment where information and communication networks can be used healthily and safely and to protect users is recognized as a legitimate legislative purpose, and the appropriateness of the means is also acknowledged."

Furthermore, the Court judged, "The provision under review allows choosing between imprisonment and fines for violations and only stipulates the upper limit of penalties in the statutory punishment, enabling sentencing appropriate to the nature of the crime in specific cases, so it cannot be considered particularly unreasonable or excessive punishment."

Finally, the Court added, "Compared to the restriction on freedom of occupation and general freedom of action imposed on those who distribute malicious programs by the provision under review, the public interest achieved through the provision?securing the stability of information and communication networks, reliability of information, and protection of users?is overwhelmingly important, thus satisfying the balance of interests."

This content was produced with the assistance of AI translation services.