사이버범죄 처벌규정의 문제점과 대책

Proposal of Amending Inconsistent or Deficient Cyber-crime Provisions

&nbsp;&nbsp;Korea is now considered as one of the leading countries in internet use and broadband internet access. Cyber-crime can be defined as any criminal activity committed in cyber-space. As technology continues its exponential growth, and as our reliance on technology grows more and more every day, the potential consequences of cyber-crime also grow more severe. Accordingly, it becomes necessary to take measures of preventing cyber-crimes.<BR>&nbsp;&nbsp;Most types of cybercrimes, especially new ones, are not legally punishable due to the deficient cybercrime legislation. For that reason, provisions of cybercrime were newly added upon the amendment of the Criminal Act in 1995. Further, a special law such as Act on Promotion of Information and Communications Network Utilization and Information Protection etc. was enacted in 2001 and frequently amended several times afterwards.<BR>&nbsp;&nbsp;This author proposes to classify types of cybercrimes as three types, that is, traditional type of cyber crime, new type of cyber crime, and unique type of cyber crime. Firstly, a traditional type of cybercrime includes cyber sexual violence, cyber stalking, cyber threat, cyber defamation, cyber sabotage, cyber secret infringement, cyber fraud, data？related cyber crime, pornography distribution via internet, cyber gambling, etc. This type of cybercrimes can be punished according to the traditional criminal codes. Secondly, a new type of cybercrime, which became newly punishable upon the enactment of special laws, includes hacking, virus distribution and spam mail etc. Thirdly, a unique type of cyber crime includes cyber-squatting, illegal procurement of cyber-money or items, and cyber-character related infringement. This type of cybercrime can be distinguished from the other two types of cybercrimes because it can be viewed as not directly infringing any legal interest protectable under the traditional criminal codes. Thus, it is necessary to review punishability of this type of cybercrime, and if punishable, what can be the requirements for the punishment.<BR>&nbsp;&nbsp;Moreover, rather than adding additional provisions in the traditional criminal codes, too many special laws became enacted, thus the punishable criminal codes in the special laws became invisible and difficult to comply with.<BR>&nbsp;&nbsp;Therefore, if we intend to enact or amend criminal codes of cybercrime, we have to consider as the first priority what is the task of criminal law, and then to explore what extent criminal punishment is necessary through balancing the legally protectable interest and punishment of a specific cybercrime. Finally, this author proposes that new type of sanction needs to be actively utilized which is alternative to traditional punishment such as probation－social service order － ordering a convicted person to attend lectures. Furthermore, we need to explore introducing the administrative measures such as the internet real-name system, and compulsory maintenance of log-in record for certain period.