무선랜 운영 및 이용의 형사책임에 관한 연구

Through the development of ICT(information and communication technology)anyone can operate and use a WLAN(Wireless Local Area Network). Because ofthe security of the open WLAN, however, there ist a possibility to be used asa means of crime. This paper examines various problems in relation to criminallaw, which are caused by the operation and the use of the open WLAN, andsuggests solutions. The operation and the use of WLAN ist approved by the interpretation of §30Telecommunications Business Act(TBA) in conjunction with §48-2 Act onPromotion of Information and Communications Network Utilization andInformations Protection, etc.(ITN). But this approval doesn’t mean admissibilityof a crime by a third party through an open WLAN access. Therefore holdersof an open WLAN is punishable as an aiding by omission if a third party makesa criminal offense. Such criminalization of open WLAN operator hampers thespread of open WLAN. It requires new provisons, because the existing limitationof liability provisions of ISP(or OSP) can not cover WLAN operator. An Act which limits the liability of open WLAN operator should be togethernot only applicable in criminal law, but also in public and civil law. The functionof open WLAN operator is similar to that of ISP in ITN and OSP in copyrightlaw. Therefore it should be considered that the concept of ISP and OSP includesWLAN operators. The open WLAN should take a measure as such as ISP andOSP. There should be a difference between public, business and nonbusinessarea. Access procedure in order to identify users should not be complicated. Such reinforcement may be against the national policy of open WLAN.