I. Question

The employee concerned (hereinafter referred to as “the Employee”) was hired by an Employee Dispatch Company (“Company A”), signed a dispatch employment contract, and started to work for Company B, the Using Company, as the company president’s secretary. During the month the Employee was working for Company B, she was scolded by her superior. The Employee voluntarily resigned on February 21, 2011, and on the following day, February 22, she did not come to work. Company B replaced her with another employee in the afternoon of February 22. When the new secretary started working, she discovered that the Employee had deleted from her computer all the data and files which had been kept by her predecessors over the last four years.
The Employee had deleted important computer files related to company work processes. Is she civilly or criminally liable for this?

II. Criminal Liability

1. Related articles in the Criminal Code
(1) Property damage (Article 366 of the Criminal Code)
Anyone who harms utility by damaging or concealing another person’s property, documents or special recordings, such as electronic recordings, etc., shall be imprisoned up to three years or fined up to 7 million won.

(2) Obstruction of business (Article 314 of the Criminal Code)
①Anyone who obstructs another person’s business by the method detailed in Article 313 (damage of trust) or by force, shall be imprisoned up to five years or fined up to 15 million won.
②Anyone who obstructs another person’s business by damaging information processing devices like computers or special media recordings, like electronic recordings, by inputting falsified information or illegal commands, by causing errors in information processing, or using other methods shall be punished the same as in ① above.

2. Opinion
Property damage and obstruction of business are crimes. If the company is certain that the Employee deleted all work-related documents accumulated over the last four years, this action by the Employee may be considered one of the above two crimes. In particular, as the Employee damaged useful company assets supporting business, proving her actions are crimes of property damage according to Article 366 should not be difficult. But this only applies if the company faced obstacles in its business or work performance due to the property damage.
The court may determine a sentence in consideration of qualitative aspects (the importance of the deleted documents or files), quantitative aspects (how much the Employee deleted), and the degree of the employee’s self-reflection. Generally, the court does not give heavy penalty for either of these crimes, but determines the severity of the sentence by punishing the greater violation. As this labor law firm is not in a position to know how serious the damage or consequences were to the company, we are unable to give a concrete answer, but we have seen similar cases where employees were fined one million won.
On the other hand, there is also a possibility that the Employee will not be considered to have committed a crime. For example, in cases where the data that an employee deletes are preserved in original copy or in hard-copy, electronic recordings are indirect and subordinate means to preserving the documents. The deleted documents likely have an insignificant market value, so the employee wouldn’t be considered to have inflicted property damage or obstructed business.

III. Civil Liability

1. Related articles in the Criminal Code
(1) Claims for illegal acts (Article 750 of the Civil Code)
Anyone who harms another person by an illegal act intentionally or by negligence shall be responsible for the damage and resulting compensation.

(2) Claims for default (Article 390 of the Civil Code)
In cases where the debtor cannot carry out repayment of the debt, the creditor can claim compensation for damage. However, in cases where the debtor unintentionally (and not due to negligence) does not carry out repayment, the creditor cannot claim compensation.

2. Opinion
In this case, the company can claim civil and criminal liability for damage, as well as compensation equivalent to the property value of the deleted documents. Civil liability would include claims against illegal acts and claims against default at the same time. That is, if an employee under employment contract neglects his/her responsibility to keep or preserve work-related electronic records in good faith and return those records to the employer, the employer can claim compensation for damage.
However, as the employer is responsible for measuring the property value of the deleted documents and estimating how much, in monetary terms, the deletions cost the company, if the employer cannot do so adequately, there is a possibility that the claim will be refused for inability to prove damage.

IV. Legal Procedures

1. Criminal complaint procedures
Generally, the company submits a letter of complaint to the police with jurisdiction over the place where the incident happened, or the address of the employee. When complaining to the police, it is advantageous to include all applicable crimes, including obstruction of business and property damage, so that the law enforcement agency does not miss any. In any case, as the investigator estimates items to be prosecuted after completing investigation, the company does not have to make a detailed list of violations in advance.
Furthermore, as the police are an investigative agency, statements and documents they submit are not open to either party unless both parties agree on disclosure of their statements and submitted documents. This inevitably makes it very hard for one party to understand directly what documents the other party has submitted and what statements have been made.

2. Procedures for compensation claims
The company shall file claims for compensation with the District Court that has jurisdiction over where the incident occurred or where the employee lives. The company can make legal claims of liability for illegal actions and defaults at the same time. The advantage of lawsuits is that each party can directly see, hear, and receive all statements or documents submitted by the other party. Therefore, in cases where one party submits falsified documents or gives falsified statements in the court, the other party has procedural opportunity to refute in detail the other party’s documents or statements.
However, since it is up to the employer to verify how much damage was done, and how compensation will be calculated, the employer first needs to review how much financial damage the deleted documents cost in terms of property value.

V. Overall Comments

The company may submit a criminal complaint to the police and file a civil lawsuit with the court at the same time. The general tendency these days is for one or the other. When both criminal and civil claims are made together, the police tend to view this as the company making a criminal complaint in order to take advantage of it for civil claim. Therefore, it is more effective to open one claim at a time, and if necessary, begin the second after seeing the results of the first. Common procedure is that criminal complaints are made first, and civil claims are filed after the results of the police investigation are known. However, the opposite order is also possible.
In conclusion, since in a case like this, it is hard to calculate damages after determining the property value of the deleted documents, there seems to be no benefit to making a civil claim. If the company is concerned about this point, it would do better to file a criminal complaint first and see the employee punished with