The Fate of a Wife Who Tracked Her Cheating Husband's Location and Searched His Car [Seocho-dong Legal Story]

Choi, who married her husband Mr. A in November 2018 and lived in Gyeongju, Gyeongsangbuk-do, began living at her parental home and maintaining a weekend-only relationship with her husband around December 2020 when she returned to work.

Their relationship rapidly deteriorated from February 2021 due to Mr. A's overnight absences and nightlife issues, and Choi eventually filed for divorce against her husband in May 2021.

Image of Oedo. Photo by Asia Economy DB

During the ongoing divorce proceedings, which required both parties to expose each other's faults, Mr. A raised concerns about Choi's past behavior, suspecting her of infidelity.

These concerns included Choi secretly installing a location-tracking application on Mr. A's phone to find evidence of his affair, searching his car to check the vehicle's black box, and leaking conversations recorded by a home camera (home cam) involving Mr. A's family members.

Choi was ultimately indicted on April 11, 2022.

She faced three charges in total.

The first charge was a violation of the Act on the Protection and Use of Location Information (Location Information Act) for installing a location-tracking app on Mr. A's phone without his knowledge.

According to the prosecution, on August 24, 2019, while Mr. A was showering, Choi unlocked his phone by entering a previously obtained pattern and installed a location-tracking app called "Jenny" to collect his location information.

On February 29, 2020, she similarly installed another location-tracking app called "Jinari" on her husband's phone to collect location data.

The second charge was for searching the vehicle to obtain evidence of her husband's infidelity.

On March 28, 2021, Choi used a spare key she had kept to open the door of Mr. A's K5 sedan parked in a parking lot and took the memory card from the vehicle's black box.

Lastly, Choi was charged with violating the Act on the Protection of Communications Secrets, which became the most contentious issue during the trial.

She was accused of secretly recording conversations between her husband, father-in-law, mother-in-law, and brother-in-law in her living room from 1:00 PM to 1:40 PM on May 1, 2020, and sending the recorded audio file to her sister-in-law via messenger around 3:41 PM the same day.

Choi did not secretly record the conversations herself; rather, the home cam installed in the living room with her husband's consent in February 2020 automatically recorded the conversations with audio.

However, the prosecution judged that Choi secretly recorded and leaked the conversations without the consent of the in-laws, applying Article 16, Paragraph 1, Subparagraphs 1 and 2 of the Act on the Protection of Communications Secrets (recording conversations between others without disclosure and leaking such conversations).

Article 3, Paragraph 1 of the Act prohibits recording or listening to conversations between others without legal authorization under this Act, the Criminal Procedure Act, or the Military Court Act. Violations are punishable by imprisonment from one to ten years and disqualification for up to five years under Article 16, Paragraph 1, Subparagraph 1.

Similarly, disclosing or leaking conversations obtained through illegal means is punishable by the same penalties.

On December 15, 2022, the Criminal Division 1 of the Gyeongju Branch of Daegu District Court, presided over by Judge Joo Eun-young, found Choi guilty of violating the Location Information Act and sentenced her to a fine of 3 million KRW.

The court pointed out, "This crime involved the defendant secretly installing a location-tracking app on the victim's smartphone and collecting location information without permission, infringing on the constitutionally guaranteed privacy and freedom of the individual, and the culpability is not light."

However, the court also stated, "The defendant admitted all charges and has no prior criminal record. Since the defendant committed the crime to verify the infidelity of her legally married spouse, there are circumstances that partially mitigate the motive. These points are considered favorable factors for the defendant."

The court took into account that Choi installed the app to confirm her husband Mr. A's affair when determining the sentence.

On the other hand, the court acquitted Choi of the charges related to the vehicle search and violation of the Act on the Protection of Communications Secrets.

Regarding the vehicle search charge, the court reasoned, "The charge presupposes that Choi searched the vehicle managed by Mr. A without his explicit or implicit consent and against his will. However, Choi was either a co-manager of the vehicle or, even if not, was a legal spouse who had general consent from Mr. A regarding access and search of the vehicle. It is difficult to conclude that such consent was withdrawn, so the vehicle search charge cannot be upheld."

The vehicle was registered under the brother-in-law's name but was mainly driven by Mr. A. Although Choi had another vehicle she drove, she was registered as an insured driver for this vehicle and occasionally drove it on Mr. A's behalf or managed items inside the car, such as apples, indicating some managerial status.

Additionally, the spare key Choi used was entrusted to her by Mr. A well before the search, and there was no request from Mr. A to return the key before or after the search.

Text messages exchanged around the time of the search showed that although their marriage was strained in March 2021, it had not completely broken down. The marriage was considered fully broken only around April 26, 2021, when Choi sent a message to her husband saying, "I took all my stuff out, goodbye," after moving out of their marital home.

The first trial court also acquitted Choi of violating the Act on the Protection of Communications Secrets (unauthorized recording and leaking of conversations).

The court noted that unauthorized recording under the Act requires an active recording act to capture conversations between others. Choi only reviewed recordings automatically made by the home cam installed with her husband's consent and did not perform any additional recording acts or intend to secretly record the in-laws' conversations.

The court also ruled that the leaking charge did not apply because it presupposes illegal secret recordings, which was not the case here.

Both the prosecution and Choi appealed, and the second trial proceeded.

The prosecution challenged the acquittals, while Choi argued that the 3 million KRW fine was excessive.

Considering the first trial court's judgment that automatic recording by the home cam did not constitute secret recording, the prosecution requested permission to amend the indictment in the appeal trial to add a charge of "listening."

They maintained the original charge of secret recording as the principal charge and added the charge of listening to undisclosed conversations between others (Article 16, Paragraph 1, Subparagraph 1 of the Act on the Protection of Communications Secrets) as an alternative charge.

However, the Criminal Division 2 of Daegu High Court, presided over by Judge Jung Seung-gyu, rejected the prosecution's alternative claim.

The court explained, "'Listening to conversations between others' requires simultaneous listening to conversations as they occur. Therefore, listening to recordings of past conversations does not meet the elements of the offense under Article 16, Paragraph 1, Subparagraph 2 of the Act."

The second trial court upheld the first trial's acquittal on the vehicle search charge.

However, the court found the 3 million KRW fine for violating the Location Information Act somewhat heavy.

The court cited Choi's admission and deep remorse, lack of prior offenses, and the mitigating circumstance that the crime was committed to verify her husband's infidelity.

Notably, during the second trial, on April 14, 2023, the Gyeongju Branch of Daegu Family Court issued a first-instance divorce ruling, recognizing Mr. A's special threats against Choi and his involvement in prostitution as the main causes of marital breakdown, making it unlikely that Choi posed a risk of reoffending.

Ultimately, the second trial court overturned the guilty verdict from the first trial and decided to suspend sentencing for Choi.

Suspended sentencing is a system where, if a defendant shows clear remorse, the court may defer sentencing for imprisonment of one year or less, detention, disqualification, or fines. If two years pass without further offenses, the sentence is considered dismissed.

Supreme Court in Seocho-dong, Seoul.

The prosecution appealed again, but the Supreme Court upheld the lower courts' decisions.

On February 29, the Supreme Court's Second Division (Presiding Justice Kwon Young-joon) dismissed the prosecution's appeal, affirming Choi's acquittal on charges of violating the Act on the Protection of Communications Secrets (recording, listening, leaking) and the vehicle search charge, and upheld the suspended sentence for the Location Information Act violation. This was nearly two years after Choi's indictment in April 2022.

The court stated, "Article 3, Paragraph 1 of the Act prohibits anyone from inspecting mail, wiretapping telecommunications, or recording or listening to undisclosed conversations between others without legal authorization under this Act, the Criminal Procedure Act, or the Military Court Act. Article 16, Paragraph 1 punishes violations of this provision. Here, 'listening' means eavesdropping on conversations between others in real-time as they occur. Listening to recordings of conversations that have already ended does not constitute 'listening' under the law."

The court cited several reasons: ▲Playing back recordings of ended conversations is not considered 'listening' to the conversation itself; ▲Article 3, Paragraph 1 does not regulate listening to recorded conversations beyond the conversations themselves; ▲Article 14, Paragraph 1 prohibits recording or electronically or mechanically listening to undisclosed conversations, but this is intended to prohibit real-time eavesdropping using electronic or mechanical devices, not all listening via natural hearing; ▲Since Article 3, Paragraph 1 and Article 16, Paragraph 1 prohibit and punish both 'recording' and 'listening' as separate acts, and 'conversation' refers to conversations occurring at the time of recording, it is reasonable to interpret 'listening' as referring to conversations occurring at the time of listening unless special circumstances exist.

The court concluded, "Interpreting playback of recordings of ended conversations as 'listening' under Article 3, Paragraph 1 would be unnecessary and could excessively broaden the scope of prohibited and punishable acts under the Act, which separately regulates 'listening' and 'recording.'"