해킹미수 처벌 논의에 대한 고찰

Abstract

When we describe a "hacker" in 21st century, we often refer to someone who tries to break into confidential computer systems. According to the current phenomenon of cyberspace expansion, the hackers have not only broadened their spatial boundaries, but also intensified the strength of the attack. Especially, the number of DDoS-Attack in prior years have been in steady inclination worldwide and its damage was of serious level. However, current prevention, detection, and investigation methodology and/or penal measure specified mainly for attempted hacking is suffering from its shortcomings. As the investigative agency acknowledged that these processes have become more intricate over the years, they have planned to punish hacking in pre-criminalization stage. During the discussion, the legislation of penal measure on attempted hacking has been a part of the debate. However, the range of discussion on attempted hacking is limited mainly for two of the following reasons. First, most of hacking process reach completion, because the hacker's engineering skill is, so called, an ‘Elite level.’ Second, it is not easy for investigation agency to charge a hacker with attempted hacking, because the operation time of the attack is ambiguous. Therefore, it is a rather difficult process to implement efficient penal measure for such narrow boundary of attempted hacking. As a result, one of the recommendations was to punish the preparation of hacking, rather than attempted hacking. However, number of scholars put forward counter-arguments to the punishment of the preparation of hacking. Nevertheless, with evidences from previous investigation practices and advocation of numerous scholars, regulation for preparation hacking was introduced. Procedures of hacking is becoming more organized, intelligent, and dangerous as we are reaching towards the "Software Era." It is necessary to inflict severe punishment on the conduct of hacking. As a conclusion, we should discuss the introduction of regulation of preparation of hacking in depth rather than its principle and theory.