[Chatting] "I'm sure my husband has an affair, but I don't have enough evidence...Can I install a spy app and check it out?"

□ Broadcast date and time: November 6, 2024 (Wednesday)
□ Host: Attorney Cho In-seop
□ Cast: Attorney Yoo Hye-jin

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information.


□ Reporter: I'm a housewife of 10 years of marriage. My husband's sister and my sister are friends, and we met for the first time because of their arrangement. We got married a year after we met, gave birth to a son and a daughter and have lived so far. Recently, however, my husband and I have been spending time on the eve of the storm. My husband was originally friendly and family-like. I don't like drinking and don't have any friends, so when I got off work, I came straight home and spent time with the kids. But at some point, I came in late every day and when I got a call in the middle of the night, I went outside and started answering it. I heard that the company is busy, but I didn't feel good for some reason. I felt like I was having an affair. But I only have psychosis, but I don't have physical evidence. I've been trying to get proof for a while, but he's such a thorough person, it's not easy. I never thought about getting divorced because my children are still young. I just wanted to get a memorandum from my husband that I would never cheat on him again and get alimony from the other woman. Then one day, I found out that there is an app that allows me to check the contents of the call, text messages, and photos if I install them on my smartphone. I asked the app vendor and he said that since the adultery was abolished, it can be used as evidence in commercial litigation. They say that illegal is rarely a problem. The cost is expensive, but if there are no legal issues, I would like to secure the evidence even so. Do you mind if I use it?

◇ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): < Attorney Cho In-seop's Counseling Office> It was the story of a person who wanted to find evidence of her husband's affair. I think there are so many different smartphone apps these days. If you install it on your smartphone, there is an app that allows you to see text messages and photos as well as location tracking. There are a lot of people who actually use such apps, right?

◆ Lawyer Yoo Hye-jin (hereinafter referred to as Yoo Hye-jin):

◇ Cho In-seop: I think you're preparing for a mutual lawsuit. Since the crime of adultery was abolished, there have been more lawsuits, right?

◆ Yoo Hye-jin: Yes, as you all know well, in the past, if you had an affair with a spouse, you were punished for adultery. Because there was no fine for adultery, only imprisonment, the proof of sexual activity was so strict. In 2015, the Constitutional Court ruled that the public's legal sentiment against sex has changed, the effectiveness of punishment is suspected, and the crime of adultery is unconstitutional on the grounds that it violates the right to sexual self-determination. After the abolition of the crime of adultery, there are a growing number of mutual lawsuits, the only way to legally punish a person.

◇ Cho In-seop: I see. Sometimes some people get it wrong, but you can't file a lawsuit only when you divorce your spouse, right?

◆ Yoo Hye-jin: Yes, adultery was a personal sin. Pro-accusation refers to a crime that can only be punished if there is a complaint, so adultery could only be punished with a spouse's complaint, and when the spouse urged or forgave adultery, the right to sue was lost. In addition, according to Article 229 of the Criminal Procedure Act at the time, in order to file a complaint, the marriage had to be dissolved or a divorce lawsuit had to be filed. Therefore, if the lawsuit was dropped or married again, it was considered a cancellation of the complaint, and the spouse who wanted to protect the family had a problem of not being able to file an adultery complaint and continuing to suffer. However, since the mutual lawsuit is a civil lawsuit, it is irrelevant to the complaint, and even if you do not divorce, you can claim alimony against the mutual person.

◇ Cho In-seop: Evidence is important in mutual litigation. What evidence do you usually need? If you file a mutual lawsuit, does the mutual person admit his or her fault and ask for forgiveness?

◆ Yoo Hye-jin: In the alimony claim lawsuit against Sangganja, evidence such as photos, text messages, KakaoTalk messages, call or conversation recordings that can confirm cheating is important. In particular, it becomes somewhat easier to win if your spouse has recorded a statement acknowledging cheating or makes a statement acknowledging the facts of infidelity. And when proceeding with alimony lawsuits, most of them deny and remove the affair, or try to avoid responsibility somehow by claiming that the couple was not in good relationship from the beginning. So the importance of evidence cannot be overemphasized.

◇ Jo In-seop: If it's a winning judgment in a mutual lawsuit, it would mean the result of getting as much alimony as possible. How much is the alimony determined?

◆ Yoo Hye-jin: The amount of alimony is determined by comprehensively considering the circumstances of the cheating, the content and degree of participation in the cheating, the period of the cheating, the circumstances after the cheating is discovered, and the period of marriage. Divorcing an affair with a spouse is an important factor in determining, and if you divorce, the amount of alimony will go up further. In the past, there was enough evidence of infidelity, and it was common to accept 20 to 30 million won if you divorced your spouse due to infidelity, and 10 to 20 million won if you did not divorce. Recently, however, the court is taking into account the fact that the amount is not large compared to the mental pain and the cost and hard work of litigation due to spouse infidelity, and therefore, the amount of alimony is increasing.

◇ Cho In-seop: In the end, you have to be recognized as an extramarital affair by the court to receive alimony. Please also explain the criteria for courts to judge cheating.

◆ Yoo Hye-jin: When you think of extramarital affairs, it's easy to think of physical sex. However, without sexual intercourse, mental infidelity in the form of only emotional exchange with a non-spouse is recognized as cheating in court. In fact, the court ruled on alimony payments in a case where it was found that she had set the end of her cell phone equally with a woman other than her wife and exchanged dozens of text messages and calls a day. According to the court, "Office Wife" or "Office Husband," which refer to colleagues who maintain close relationships like spouses in the workplace, may also fall under a wide range of "mental infidelity." After all, the spouse's wrongful behavior is a concept that includes adultery, in other words, any act that is not faithful to the couple's duty of chastity, support, and cooperation, even if it does not lead to sexual intercourse.

◇ Cho In-seop: You don't want to divorce your husband, but you're looking into his smartphone and looking for evidence in order to get as much alimony as you can from the merchant. It can be legally problematic, right?

◆ Yoo Hye-jin: Yes, if the sender finds out her husband's lock pattern and password and peeks at her messenger or e-mail, she could be sentenced to up to three years in prison or fined up to 30 million won for violating the Information and Communication Network Promotion Act and Information Protection Act.

How can I get into trouble if I install illegal apps like auto recording apps or spy apps on my husband's smartphone?

◆ Yoo Hye-jin: If you install illegal apps on your husband's smartphone, there is a possibility of violating the Personal Information Protection Act, the Communication Secret Protection Act, and the Information and Communication Network Act. If the other party, that is, the husband's smartphone, is obtained through an illegal app, the app developer, which is the personal information controller, can be evaluated as collecting it and delivering it to the third party, the sender, which may violate Articles 17, 1, and 23 of the Personal Information Protection Act. Secretly recording conversations between others is also a violation of Article 3, Paragraph 1 of the Communications Secret Protection Act and is illegal. In addition, the act of installing an illegal app itself is a violation of Article 48 of the Information and Communication Network Act. Article 48 of the Information and Communication Network Act prohibits the transmission and distribution of programs that can damage, lose, change, forge, or interfere with the operation of information and communication systems, data, or programs without justifiable reasons. In addition, Article 49 of the Information and Communication Network Act stipulates that no one should damage other people's information processed, stored, or transmitted by the information and communication network, or infringe, steal, or divulge other people's secrets. However, if an illegal app is installed on her husband's smartphone, the sender uses an illegal app to secure the other party's information processed and transmitted by the information and communication network. Therefore, both the app developer and the sender are considered to have infringed on or leaked the husband's secrets, and according to Article 71 of the Information and Communication Network Act, they can be punished with up to five years in prison or a fine of up to 50 million won.

◇ Cho In-seop: Illegal app installations are more likely to violate several laws than expected, and they are likely to face heavy punishment. So is there any way for you to legally collect evidence?

◆ Yoo Hye-jin: As I mentioned earlier, illegal app installation may violate several laws, and there is also a way for the sender to legally obtain evidence through the court, so I do not recommend it. If you apply to the court for a fact check, you can get your husband's card details, and if you have a record of more than two airline tickets being paid, you can apply for an additional spouse's entry and exit records to see who's sitting next to him. When it is confirmed that you went on a trip with a suspected affair, you can also obtain travel agency data such as accommodation details through the court. You can also apply to the court and ask the carrier and messenger company for details.

◇ Jo In-seop: Now, to summarize the contents of the consultation so far. . . Since mutual litigation is a civil litigation, you can claim alimony from the mutual person without divorce. Alimony is determined by the circumstances and duration of the cheating, and the length of the marriage, and it can be higher if you divorce. In order to file a mutual lawsuit, you need evidence to prove cheating, and if you sneak into your husband's smartphone or install an illegal app, you can be punished for violating the Information and Communication Network Act and the Personal Information Protection Act. In order for you to legally seek evidence, I would like to inform you that you can request a fact check with the court to collect your husband's card statement, immigration records, accommodation details, etc. You've been with lawyer Yoo Hye-jin.

◆ Yoo Hyejin: Yes, thank you.

◇ Cho In-seop: You can listen to <Attorney Cho In-seop's Counseling Office> again on YouTube. If you have any questions or suggestions, please comment.