Violation of Privacy (Violation of Secrecy): Elements, Targets, and Complaint Requirement

What Is a Violation of Privacy?

A violation of privacy means that various pieces of information related to an individual are exposed to or misused by others.

Under the Korean Criminal Act, a violation of privacy is regulated under the name violation of secrecy (비밀침해) in Article 316.

Violation of Secrecy

According to Article 316 of the Korean Criminal Act, the offense of violation of secrecy reads as follows.

Article 316(Violation of Secrecy) (1) A person who opens a sealed or otherwise secretly secured letter, document, or drawing belonging to another shall be punished by imprisonment for not more than 3 years, imprisonment without labor, or a criminal fine not exceeding KRW 5 million. <Amended on Dec. 29, 1995>

(2) A person who, by technical means, finds out the contents of a sealed or otherwise secretly secured letter, document, drawing, or special media record such as an electronic record belonging to another shall be subject to the same punishment as provided in paragraph (1). <Newly Inserted on Dec. 29, 1995>

Elements of the Offense of Violation of Secrecy

The elements of a violation of privacy (violation of secrecy) are as follows:

1. It must be a sealed or otherwise secretly secured letter, document, drawing, or special media record such as an electronic record belonging to another

2. It must be opened

3. There must be intent

Secret Securing Devices Under the Offense of Violation of Secrecy

A secret securing device under the offense of violation of secrecy refers not only to a securing device on the document itself, but to any and all devices that create an external wrapping by a method other than sealing so that the contents inside cannot be known.

Accordingly, a box or safe with a lock, or a locked drawer, is also included.

Intent Under the Offense of Violation of Secrecy

Intent under the offense of violation of secrecy refers not to the intent to learn another person's secret in order to threaten or misuse it, but rather to the intent to find out another person's secret.

The moment another person's secret is discovered, their privacy is violated, and a person may be punished even if they had no intention of misusing that secret.

However, if there is no intent to find out the secret, the offense of violation of secrecy is not established.

For example, this applies where someone opens something while mistakenly believing it to be their own.

Targets of the Offense of Violation of Secrecy

The targets of the offense of violation of secrecy include everyone.

In other words, family members, including a spouse, may also be punished as targets of the offense of violation of secrecy.

Violation of Secrecy as an Offense Prosecutable Only Upon Complaint

Violation of secrecy is an offense prosecutable only upon complaint (친고죄), so a public prosecution cannot be initiated without a criminal complaint.

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