상대방과의 대화녹음행위에 대한 규범적 평가 - 음성권 침해로 인한 불법행위 성부 및 위법성 판단기준, 대상판결 : 대법원 2025. 10. 16. 선고 2025다204730 판결 -

초록

The subject case is an issue concerning whether the company and the recorder who instructed the company to record the conversation in the case of recording the conversation without the other party's consent and submitting it to the court as evidence in a labor relations dispute is “whether the responsibility for illegal activities due to infringement of communication confidentiality is recognized.” The subject case confirmed that the voice right belongs to the personal rights constitutionally guaranteed by Article 10 of the Constitution, but denied the defendants' responsibility for illegal activities based on the acceptance limit theory, judging that “the possibility of the damage that the plaintiff may suffer from the recording of the case cannot be acknowledged in consideration of the circumstances of the recording act and the submission of the recording file.” With the advancement of technology, similar disputes are increasing because everyone has a mobile phone and it is easy to record conversations with the other party on a mobile phone with a recording function. There was confusion because our legislation did not stipulate the "voice right or communication confidentiality" and existing precedents did not clarify the criteria for judging the illegality of recording without the other party's consent. In this situation, the subject case is significant in that it confirms the “legal nature and status of communication confidentiality” and presents “Criteria for determining illegality of recording without the consent of the other party.” However, it is questionable whether subjective circumstances considered by the target judgment in the Criteria for determining illegality can be generalized as Criteria for determining illegality. In connection with the recording of the conversation without the consent of the other party, I propose a method of determining the illegality by setting objective standards in the “illegal judgment stage.” In addition, even if illegality is recognized, if the recording is recognized as being for “significant public interest,” I propose a method to achieve the public interest by protecting the individual's communication confidentiality and not holding someone accountable for illegal activities if disclosure of confidential conversations is necessary for the public interest.

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