근로관계에 있어 대화녹음의 불법행위 성립기준 – 대상판결 : 대법원 2025. 10. 16. 선고 　2025다204730 판결 –

Korea’s Communication Secret Protection Act prohibits recording conversations between others that are not open to the public or listening by electronic devices or mechanical means. However, one of the parties who participated in the conversation does not prohibit recording the conversation or broadcasting or distributing the recorded conversation against the will of the other party. Perhaps for this reason, there is a widespread perception among the general public in Korea that confidential recording is not illegal, and confidential recording is routinely performed. However, contrary to this perception, the local court’s precedents in Korea have long acknowledged that such confidential recording violates the right to voice and may constitute civil illegal activities. In addition, in the extension of the local court’s precedents, for the first time in the Supreme Court precedent, there was a ruling that presented the constitutional basis and specific contents of the right to voice, and the criteria for determining whether illegal activities were established due to infringement of the right to voice. The precedent specifically ruled that anyone has the right to voice, which belongs to the moral right under Article 10 (1) of the Constitution of Korea, and is the right not to record, play, record, reproduce, broadcast, or distribute against his or her will. The fact that the conversation party’s confidential recording alone does not constitute an illegal act that infringes on the right to voice, but it is said that it could be an illegal act if it is recognized in light of the other party’s explicit opposition to the recording, whether there was a deception or threat during the recording process, ③ whether the recording was broadcast or distributed without the other party’s consent, ④ the purpose and necessity of recording by the person who recorded or distributed it, and ⑤ damage to the other party caused by it. The legal principles presented by this precedent are expected to be an important criterion for judging the illegality of illegal activities due to infringement of voice rights in related studies as well as disputes in which confidential recording is a problem in the future. However, it is somewhat questionable whether the “expression of objection to recording” presented by the ruling as a criterion for judgment is appropriate considering that the case is related to labor relations, and it is possible to criticize some parts that acknowledge the need for confidential recording.