정보통신망장애죄에서 장애의 의미및 예비ㆍ음모에 대한 입법론

Abstract

In information society where information technology is networked throughout society, the act of causing damage to computer system is a criminal act that can bring about a severe threat on information communication network, not simply a problem of the use of software function. In order to cause interference on the targeting system, attackers go through the structures of many stages from preparing attacks to implementing them, which involves various illegal acts. However, the existing criminal punishments do not reflect the structural characteristics of information communications network interference crime, and merely stipulate the behavior methods and results as elements of a crime; thus they are unable to appropriately regulate the actual criminal acts of information communications network interference. Therefore, by focusing on Distributed Denial of Service (DDoS), one of the most common attack techniques of information communications network interference crime, this research aims to present an analysis of the current criminal rules and problems of applicability, and a plan to increase the efficiency of regulation. To begin with, this research first divided the behavioral forms according to each stage of DDoS process in regards to when criminal standards intervene. Then it discussed the time at which the direct risk of infringement oninformation communications network—the benefit and protection of this crime— is admitted. Furthermore, in order to clarify the range of actual information communications network interference crime within the scope of criminal protection, this research reviews the meaning of ‘interference,’ which is the standard for classifying the actual and attempted crime. Next, the research discussed the applicability of information communications network interference crime (Information Network Law §48 ③), computer interference with business crime (Criminal Law §314 ②), and property damage crime (Criminal Law §366). Information communications network interference is a concept that includes damage on software and hardware, and it also refers to the cases of being unable to practically use information communications network, using it for other purposes, or deteriorated information processing function. However, when information communications network interference is interpreted by including the use of its function for other purposes and deteriorated function to expand the concept of interference, a problem that the punishment rules of this crime can be applied to a general and legal use of information network is raised. Therefore, in order to maintain the legitimacy of criminal intervention, this paper suggests an interpretation that the concept of interference should be limited to cases in which the integrity and availability of information communications network have been clearly infringed, considering the benefit and protection of this crime. The flaws of punishment for this crime appear when the characteristics of attack technique according to technological development are not considered. Recently, many information and communications network crimes occur in the form of DDoS, which attackers carry out by using remote-control botnets above a certain scale to attack. A botnet is an element that determines interference, the component result of this crime. Considering its development process and completed development, it is necessary to punish a botnet as its illegal purpose and the risk of infringement on information communications network can be admitted. This research presented a criminal legislative theory on botnet, by reviewing whether the components of botnet development fulfills the preparationㆍ conspiracy crime.