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A Study on Intrusion of Information and Communications Network

EungJun Jeon, Lawyer, YOUME Lawfirm, Seoul; Republic of Korea.

Donghwan Shin, Lawyer, YOUME Lawfirm, Seoul; Republic of Korea.

Article 48 (1) of the Information and Communications Network Act is based on the abstract, comprehensive, and flexible concept of the “Information and Communication Network”. With the development of information and communication technology and the Internet, it can be said that the world is virtually connected to a single information and communication network. Depending on the given situation and the background of the discussion, various concept of information and communication networks of various layers and ranges can be defined under the global information and communication networks. By adding the normative elements such as ‘rightful’ and ‘access authority’ and the mode of action called ‘trespass’ to this abstract, comprehensive, and flexible concept of information and communication networks, there is a risk that the range can be expanded indefinitely.

In this paper, we examine the contents of the legislative history, regulations and benefit and protection of the law under Article 48 (1) of the Information and Communications Network Act, and examine them in a comparative manner with similar legislation in the United States, the European Union, Japan, and Germany. On the basis of this, an interpretation for the meaning or scope of each component of Article 48 (1) of the Information and Communication Network Act is presented.

Information, functions, devices(hardware), technology(software), or services constituting an ‘information communication system’ may be all included in the information communication network that is an object of the information communication network trespass. In addition, whether an access to a certain configuration constitutes the trespass of the information and communication network depends on the approach or the route of access to the configuration, its specific behavior, and the results of the access. And also it should be judged on the basis of whether benefit and protection of the law such as “the protection of its own stability and the reliability of its information” have been violated. If this benefit and protection of the law is not taken into account, the scope of the crime is excessively widened due to the uncertainty of the compositional requirements, and there is a possibility of violating the principle of “nulla poena sine lege”.

1. Introduction

Last year, just before the announcement of the College Scholastic Ability Test score for 2020, some re-entry students have already figured out their score by entering the URL of the webpage where their 2019 entrance College Scholastic Ability Test was posted in the web browser without permission of management agency. The incident became a social issue. With regard to computer-related crimes, the Criminal Act sets certain acts that targets ‘information processing devices such as computers’ [1] or ‘special media records such as electronic records’ [2] as the constitutional requirements of crimes. Such constitutional requirements of the Criminal Act extend the scope of the criminal acts in accordance with the development of technology in terms of documents, objects and information. But there are still limitations in embracing a variety of behaviors that may occur online, such as the College Scholastic Ability Test score inquiry case.

Article 48 (1) of the Act on Promotion of Information and Communication Network Utilization and Information Protection, etc. (hereinafter referred to as the ‘Information and Communication Network Act’) says that “No one shall intrude on an information and communications network without a rightful authority for access or beyond a permitted authority for access”. The article is established to punish so-called ‘hacking’ that cannot be punished solely by Criminal Act.

Article 48 (1) of the Information and Communications Network ACT is based on the abstract, comprehensive, and fluid concept such as “Information and Communication Network”. With the development of information and communication technology and Internet, it can be said that the world is virtually connected to one information and communication network. Depending on the given situation and the background of the discussion, various concept of information and communication networks of various layers and ranges can be defined under the global information and communication network. By adding the normative elements such as ‘rightful’ and ‘access authority’ and the mode of action called ‘intrusion’ to this abstract, comprehensive, and fluid concept of information and communication network, there is a risk that the range of interpretation can be expanded indefinitely. The provisions of Article 48 of the Information and Communications Network Act are established in accordance with the realistic need to regulate various criminal acts that can occur online. It is necessary for the interpretation theory to clarify the scope and composition of the rules. Nevertheless, there is a lack of discussion in the academic and practical fields.

In this paper, we examine the contents of the legislative history, benefit and protection of the law, and regulations under Article 48 (1) of the Information and Communications Network Act, and then examine them in a comparative manner with similar legislations in the United States, the European Union, and Japan. On the basis of these comparative analyses, an interpretation for the meaning or scope of each component of Article 48 (1) of the Information and Communication Network Act is presented.

 

2. Article 48 (1) of the Information and Communications Network Act

2.1. Legislative history

Act on the Expansion and Utilization of Computing Networks

Article 22 (1) of the Act on the Expansion and Utilization of Computing Networks refers to “Persons engaged in the business of processing, storing, and transmitting information using the computer network should take protective measures to ensure the stability and reliability of information.” Paragraph 2 of the Article stipulates that “no one shall infringe or damage the protective measures under paragraph 1 in an illegal or unfair manner.” In light of the fact that Article 25 of the Act states that “no one should infringe or disclose the confidentiality of others processed, stored, or transmitted by the computer network” Article 22 is intended to protect the system itself (computer network, information and communication system) that manages and controls information to secure the stability of the computer network and reliability of information. Compared to the current requirements of the Information and Communication Network Act, the feature of above article is that it prohibits the act of “invading or damaging protection ..


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