[Defendant] Defendant
[Appellant] Defendant
[Defense Counsel] Attorney Jeon Yeong-gyeong of Woosung Law Firm (LLC)
[Lower Court Judgment] Uijeongbu District Court Judgment 2025No2686, decided December 19, 2025
[Order]
The appeal is dismissed.
[Reasoning]
The grounds of appeal are examined.
1. As to the grounds of appeal concerning the violation of the Personal Information Protection Act (「개인정보 보호법」)
A. Relevant Legal Principles
Considering the language and structure of the relevant provisions, including Article 2, Subparagraph 5 of the Personal Information Protection Act, as well as a reasonable interpretation of the concept of "personal information controller" in light of the legislative purpose and the legal interest protected by the Personal Information Protection Act, a person who processes personal information, either directly or through another person, for the purpose of operating a personal information file for business purposes should, absent special circumstances, be deemed a "personal information controller" as defined in Article 2, Subparagraph 5 of the Personal Information Protection Act. This conclusion does not change even where the personal information was obtained through hacking or other unlawful means, or where personal information that had been unlawfully circulated without the consent of the data subject or without any legal basis was obtained and then processed to operate a personal information file for business purposes. The reasons are as follows.
1) The Personal Information Protection Act, in Article 71, Subparagraph 2, provides for the punishment of "a person who uses or provides personal information to a third party in violation of Article 18, Paragraphs 1 and 2," and Article 18, Paragraph 1 provides that "a personal information controller shall not use personal information beyond the scope set forth in Article 15, Paragraph 1, or provide it to a third party beyond the scope set forth in Article 17, Paragraphs 1 and 3." The "personal information controller," who is the subject of the obligation under Article 18, Paragraph 1 of the Personal Information Protection Act, refers to "a public institution, corporation, organization, individual, or the like that processes personal information, either directly or through another person, for the purpose of operating a personal information file for business purposes" (Article 2, Subparagraph 5), and "personal information file" refers to a collection of personal information systematically arranged or organized according to certain rules to enable easy retrieval of personal information (Article 2, Subparagraph 4).
Examining the language and structure of the relevant provisions of the Personal Information Protection Act in this manner, the concept of "personal information controller" is defined merely as "a public institution, corporation, organization, individual, or the like that processes personal information, either directly or through another person, for the purpose of operating a personal information file for business purposes," without placing any restriction on the circumstances or method by which the personal information controller acquired the personal information file.
2) The Personal Information Protection Act aims to protect individuals' freedom and rights, and further to realize human dignity and worth, by establishing matters concerning the processing and protection of personal information (Article 1), and its protected legal interest is the data subject's right to self-determination over personal information (see Supreme Court Decision 2012Da49933, decided July 24, 2014; Supreme Court Decision 2024Do19539, decided October 30, 2025, among others).
For this purpose, the Personal Information Protection Act, in order to protect the rights and interests of data subjects and to ensure the proper processing of personal information, imposes various obligations on the "personal information controller," who is the subject operating personal information files, ranging from the collection, use, and provision of personal information to management and supervision over the processing of personal information, and provides for criminal liability in case of violation of these obligations. That is, a personal information controller may collect personal information where the data subject's consent has been obtained or where there is a special provision of law, among other cases, and may use it within the scope of the purpose of such collection (Article 15, Paragraph 1). A personal information controller may provide a data subject's personal information to a third party in certain cases, such as where the data subject's consent has been obtained (Article 17, Paragraph 1). In principle, a personal information controller shall not use personal information beyond the scope set forth in Article 15, Paragraph 1, or provide it to a third party beyond the scope set forth in Article 17, Paragraph 1 (Article 18, Paragraph 1). Furthermore, when a personal information controller processes personal information collected from a source other than the data subject, it must, upon the data subject's request, immediately notify the data subject of the source of collection of the personal information, among other matters (Article 20, Paragraph 1). The data subject may request the personal information controller to allow access to his or her own personal information (Article 35, Paragraph 1), and may request correction or deletion of such personal information, or suspension of its processing (Article 36, Paragraph 1; Article 37, Paragraph 1). In addition, where a data subject suffers damage due to an act by a personal information controller in violation of the Personal Information Protection Act, the data subject may claim damages from the personal information controller, and in such case, the personal information controller cannot be exempted from liability unless it proves the absence of intent or negligence (Article 39, Paragraph 1).
Therefore, if a person is deemed not to constitute a personal information controller solely on the ground that the person directly obtained personal information through hacking or other unlawful means, or obtained personal information that had been unlawfully circulated without the consent of the data subject or without any legal basis, this would run counter to the legislative purpose and protective aim of the Personal Information Protection Act and would create a significant gap in the protection of the data subject's right to self-determination over personal information. This is because, in a situation where there is a heightened risk of infringement of the data subject's rights and interests by directly obtaining personal information through unlawful means or by obtaining unlawfully circulated personal information and then operating a personal information file for business purposes on that basis, the result would rather be that such a person is exempted from the various obligations and liabilities that are imposed on personal information controllers as the persons bound by such obligations.
B. Determination
The lower court found the defendant guilty of this part of the charges on the ground, as stated in its reasoning, that the defendant fell under the "personal information controller" as defined in Article 2, Subparagraph 5 of the Personal Information Protection Act. Examining the reasoning of the lower court's judgment in light of the aforementioned legal principles and the evidence lawfully admitted, it was proper for the lower court to find the defendant guilty of violating Article 71, Subparagraph 2 and Article 18, Paragraph 1 of the Personal Information Protection Act, even in a case where the defendant obtained personal information through hacking or other unlawful means, or obtained personal information that had been unlawfully circulated without the consent of the data subject or without any legal basis, and then processed such information to operate a personal information file for business purposes on that basis. There is no error in the lower court's determination, such as failing to conduct the necessary examination, violating the rules of logic and experience so as to exceed the limits of free evaluation of evidence, or misunderstanding the legal principles concerning the "personal information controller" under Article 2, Subparagraph 5 of the Personal Information Protection Act, the relationship of conspiracy, or the principle prohibiting a disadvantageous change in punishment.
2. As to the grounds of appeal concerning the part on establishing a space for gambling
The lower court, for the reasons stated in its judgment, upheld the first-instance judgment, which had found this part of the charges guilty. Examining the reasoning of the lower court's judgment in light of the relevant legal principles and the evidence lawfully admitted, there is no error in the lower court's determination, such as violating the rules of logic and experience so as to exceed the limits of free evaluation of evidence, or misunderstanding the legal principles concerning the completion of the offense of establishing a space for gambling, that affected the judgment.
3. Ex officio determination on the relationship of the number of offenses between the violation of Article 71, Subparagraph 2 and Article 18, Paragraph 1 of the Personal Information Protection Act and the violation of Article 71, Subparagraph 10 and Article 59, Subparagraph 3 of the Personal Information Protection Act
A. An imaginary concurrence of offenses (상상적 경합) refers to a case where a single act substantively satisfies the elements of several offenses, whereas a conflict of statutes (법조경합) refers to a case where a single act appears, on its face, to satisfy the elements of several offenses but in substance constitutes only a single offense. Whether an act substantively constitutes a single offense or multiple offenses must be determined by examining the elements of the offense and the protected legal interest (see Supreme Court Decision 97Do2956, decided March 24, 1998; Supreme Court en banc Decision 2002Do669, decided July 18, 2002, among others). Furthermore, a "special relationship," which is a form of conflict of statutes, refers to a case where one set of elements is established only by including all the elements of another set of elements plus additional elements; in a special relationship, an act satisfying the elements of the special law also satisfies the elements of the general law, but conversely, an act satisfying the elements of the general law does not satisfy the elements of the special law (see Supreme Court Decision 97Do1085, decided June 27, 1997; Supreme Court Decision 2002Do6033, decided April 8, 2003, among others).
B. Article 18, Paragraph 1 of the Personal Information Protection Act provides that "a personal information controller shall not use personal information beyond the scope set forth in Article 15, Paragraph 1, or provide it to a third party beyond the scope set forth in Article 17, Paragraph 1 and Article 28-8, Paragraph 1." Article 71, Subparagraph 2 of the same Act provides that "a person who uses or provides personal information to a third party in violation of Article 18, Paragraphs 1 and 2, Article 27, Paragraph 3, or Article 28-2 (including cases applied mutatis mutandis under Article 26, Paragraph 8), Article 19, or Article 26, Paragraph 5, and a person who receives personal information for profit or for wrongful purposes while being aware of such circumstances, shall be punished by imprisonment for not more than five years or by a fine not exceeding fifty million won." Meanwhile, Article 59 of the same Act provides that "a person who processes or has processed personal information shall not commit any of the following acts," and Subparagraph 3 thereof provides for "using, damaging, destroying, altering, forging, or leaking another person's personal information without legitimate authority or exceeding the authority granted." Article 71, Subparagraph 10 of the same Act provides that "a person who uses, damages, destroys, alters, forges, or leaks another person's personal information in violation of Article 59, Subparagraph 3 shall be punished by imprisonment for not more than five years or by a fine not exceeding fifty million won."
The respective penal provisions for the offense of violating Article 71, Subparagraph 2 and Article 18, Paragraph 1 of the Personal Information Protection Act and the offense of violating Article 71, Subparagraph 10 and Article 59, Subparagraph 3 of the Personal Information Protection Act differ in their specific elements, including the persons bound by the obligation and the prohibited acts, and thus the elements of the former offense do not constitute a case of including all the elements of the latter offense plus additional elements. Accordingly, the provision on the offense of violating Article 71, Subparagraph 2 and Article 18, Paragraph 1 of the Personal Information Protection Act cannot be regarded as being in a special relationship with the provision on the offense of violating Article 71, Subparagraph 10 and Article 59, Subparagraph 3 of the Personal Information Protection Act; rather, these are each independent and separate elements of offense, and where a single act satisfies the elements of each offense, they must be regarded as being in a relationship of imaginary concurrence.
C. Nevertheless, the lower court, for the reasons stated in its judgment, held that where the offense of violating Article 71, Subparagraph 2 and Article 18, Paragraph 1 of the Personal Information Protection Act is established, the offense of violating Article 71, Subparagraph 10 and Article 59, Subparagraph 3 of the Personal Information Protection Act does not separately arise, and accordingly found the defendant not guilty, in the reasoning, of the part of the charges concerning the violation of Article 71, Subparagraph 10 and Article 59, Subparagraph 3 of the Personal Information Protection Act. This constitutes a misunderstanding of the legal principles concerning the number of offenses as between the two offenses, which are in a relationship of imaginary concurrence. However, in light of the circumstances that there is, in the end, no difference in the range of the applicable punishment, and that even if it were held that both offenses are separately established but in a relationship of imaginary concurrence, and the defendant were punished under the punishment prescribed for the offense of violating Article 71, Subparagraph 2 and Article 18, Paragraph 1 of the Personal Information Protection Act, which is the more serious offense in terms of the nature of the offense, there would appear to be no substantial difference, compared to the lower court's approach of finding that only the offense of violating Article 71, Subparagraph 2 and Article 18, Paragraph 1 of the Personal Information Protection Act was established, in the conditions for sentencing or the sentence imposed accordingly, it cannot be said that the lower court's determination regarding the evaluation of the number of offenses affected the judgment (see Supreme Court en banc Decision 80Do384, decided December 9, 1980; Supreme Court Decision 2025Do4969, decided July 3, 2025, among others).
4. Conclusion
The appeal is dismissed, and it is so decided by the unanimous opinion of the participating Justices as stated in the Order.
Justice Ma Yong-ju (Presiding Justice), Cheon Dae-yeop, Seo Gyeong-hwan (Justice in Charge), Shin Suk-hee