중립적 기술 제공과 공범 성립 여부 - 한국, 일본, 미국의 사례와 관련하여 -

Recently there has been a growing debate in Korea on criminal accomplice liability through neutral behavior. The main issue is the question of whether providing value-neutral software over the internet is evaluated as criminal assistance. The author of this article discusses several copyright infringement cases in Korea, Japan and the US. Soribada is the first Korean peer-to-peer system, and it started service in 2000. The prosecutor's office of Korea has indicted the operators of local peer-to-peer MP3 download site Soribada for copyright infringement. The Seoul High Court held that the provider of Soribada was not responsible for the users' unlawful actions. However, the Supreme Court of Korea reversed the High Court's decision, finding the defendant guilty. Winny copyright infringement criminal case in Japan was a Japanese criminal case in which Isamu Kaneko, the developer of P2P file-sharing program Winny, was indicted for aiding in copyright infringement. In Kaneko's case, the Supreme Court of Japan held that even if a provider of value-neutral software programs knew and accepted the possibility that some people among the program's many users would use it for illegal purposes, it was insufficient to punish the provider as an accessory to the users' infringements. The author of this article argues for a test that balances the conflicting interests of the vendors to freely engage in gainful activities without policing their vendees, and the interest of the community in preventing behavior that facilitates the commission of crimes. The author agrees with the opinion that the freedom to engage in legal business enterprises should be protected. Thus, for example, a provider of value-neutral technology capable of legal and illegal usage should, arguably, be able to rely on each user to independently decided on whether to use them for legal or illegal activities or purposes, and such providers should, therefore, not be punished as accomplices.