[Getty Images Bank]
[Getty Images Bank]

A man who discovered evidence of his wife's affair on her phone now faces the possibility of being reported to police — by his wife — for accessing the device without her permission.

The case of the man, identified only as A, who has been married for eight years, aired Monday on YTN Radio's legal advice program "Attorney Jo In-seop's Consultation."

According to A, his wife works as a manager at a large hotel and regularly puts in weekend shifts. At some point, however, her behavior began to change. She started making more plans outside the home, paid greater attention to her appearance, gave short answers when spoken to and frequently checked her phone.

As his unease grew, A one day noticed a notification on his wife's phone, left on the dining table while she was in the shower. The message read: "I miss you today too." Shaken, he unlocked the phone using her passcode and found what he had feared — daily messages exchanged with a man, including one that read "Monday was fun" and "Your husband didn't notice, did he?" He also found photos of the two together, call logs and hotel reservation texts.

A photographed the screen with his own phone, then confronted his wife about the affair several days later. Rather than explain herself, she demanded to know how he had found out and threatened to file a complaint against him for accessing her phone without consent.

"My wife says the evidence I gathered won't hold up legally," A said, seeking advice. "I'm the one who was betrayed, yet somehow I feel like I've become the wrongdoer. I want to file a damages claim using what I found, and I need to know whether I'm really in as bad a position as she says."

Woo Jin-seo, an attorney at law firm Shinsegae-ro, said marriage does not grant a spouse the right to access the other's phone or accounts. "Particularly when a passcode has been set, accessing the device can be seen as a violation of the other person's privacy, which could raise issues under the law on protection of secrets or the Act on Promotion of Information and Communications Network Utilization and Information Protection," Woo said. He added that even if A had learned the passcode at an earlier point, explicit permission to access the device at any time and in any scope is still required.

Woo also noted that Supreme Court precedent addresses whether illegally obtained evidence can be used in court. "Secretly recording a conversation between other parties constitutes a violation of the Protection of Communications Secrets Act, and that law explicitly states such recordings have no evidentiary value — so they cannot be used as evidence," he said.

The Act on Promotion of Information and Communications Network Utilization and Information Protection, however, contains no provision on evidentiary value, unlike the communications secrets law, leaving the matter to individual judges' discretion. "Depending on the degree of the violation and the manner in which the evidence was collected, it may still be admitted," Woo said.

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