The defendant shall be innocent.

The court below found the Defendant guilty of the facts charged of this case, misunderstanding the facts or misunderstanding the legal principles, which affected the conclusion of the judgment, although the Defendant and the victim had a relation of interest with the Defendant at the time of the time indicated in the facts charged of this case.

2. The facts charged in this case and the judgment of the court below

A. The facts charged in this case

The Defendant became aware of the victim Nonindicted 1 (n, 53 years old) and a restaurant in the course of operating his business.

around 18:20 on October 16, 2013, the Defendant sent two copies of the victim’s b body pictures (hereinafter “instant pictures”) to the victim, together with another person, at a park where the name of the Songpa-gu Seoul Metropolitan Government Pungdong is unknown. The Defendant sent two copies of the victim’s b body pictures (hereinafter “instant pictures”) to the victim with the victim’s sexual intercourse with the victim.

As a result, the Defendant reached the other party that may cause sexual humiliation or aversion through the communication media with a view to inducing or satisfying his or another person's sexual desire.

B. The judgment of the court below

The lower court found the Defendant guilty of the instant charges on the ground that, even if the Defendant assumed that he had a relationship with the victim at the time of transmission of the instant pictures, in light of the details of the Kakakao Stockholm dialogue given and received along with the pictures at the time of transmission of the instant pictures, it cannot be deemed that the victim requested or consented to transmit the above pictures, and that there is sufficient evidence to acknowledge that the Defendant reached a picture that may cause sexual humiliation and aversion with the intent to arouse or satisfy the sexual desire.

3. Judgment of the court below

A. obscenity using a communication medium under Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes shall not only cause a sense of sexual shame, etc., but also be punished for the purpose of inducing or satisfying his/her or another person’s sexual desire. Therefore, even if the picture, etc. seems objectively to cause a sense of sexual humiliation, it cannot be determined immediately whether the crime is established or the above purpose is recognized. Considering the motive and circumstance leading up to sending the picture, the situation before and after reaching the picture, the relation between the Defendant and the victim, the details and form of the act, etc., as a whole, the determination of whether the Defendant intended to arouse or satisfy his/her or other person’s sexual desire pursuant to the purport of the Act constituting an excessive subjective constituent elements, should be made from the subjective point of view of the Defendant and the victim’s sexual desire. Likewise, whether the picture, etc. reached the other party would cause a sense of sexual humiliation or aversion, not from the objective image, but from the subjective point of view of all the above elements.

B. In full view of the following circumstances acknowledged by the records of this case, the Defendant is deemed to have transmitted the pictures of this case taken under the consent of the victim in order to maintain the relationship with the victim, and it is difficult to view that the Defendant had a purpose to induce or satisfy his/her or his/her sexual desire. In light of the relationship between the Defendant and the victim at the time, it is difficult to recognize that the instant pictures have caused sexual humiliation or aversion, and it is difficult to find that the victim had suffered sexual humiliation or aversion. At present, the emotional change of the victim’s sentiment against the Defendant is difficult to change.

① From the end of April 2012 to Oct. 6, 2013, the victim asserted that he was sexual assaulted by the Defendant at the time of submitting the written statement from Apr. 2012 to Oct. 11, 2013, the Defendant sent the instant pictures to the effect that he was subject to sexual assault. However, there is insufficient evidence to acknowledge that the Defendant had sexual assaulted the victim. Rather, the Defendant appears to have established a sexual relationship under the agreement between the Defendant and the victim. Ultimately, it is difficult for the prosecutor to believe that the Defendant sent the instant pictures to intimidation or made a sense of sexual humiliation due to the instant pictures (On the other hand, the Defendant stated the instant pictures at the trial as 4 and 5th of the investigation record, not from the sending of the instant pictures to the victim using Kakaox, but from the Defendant’s temporary transmission of the instant pictures to the victim, the Defendant’s address at 5th of the investigation record, not from the Defendant’s temporary transmission of the instant pictures to the victim’s 15th of the instant pictures.

(2) As mentioned earlier, the Defendant did not directly transmit the images of the pictures to the victim using Kakakakao Messen on the date indicated in the facts charged of the instant case, but rather linked the Internet address at which one’s pictures were stored to connect the Rabbbage cryp to the Internet address where one’s pictures were stored. As such, it is insufficient to recognize that the Defendant had the intent of transmitting the instant pictures against the victim’s will to cause the victim

③ The Defendant has maintained sexual intercourse with the victim for a considerable period of time, and the photographs of the victim, including the instant pictures, do not seem to have been taken against the victim’s will.

④ Examining the contents of the message sent by the Defendant along with the instant pictures, it seems that the relationship between the Defendant and the victim was somewhat worse than the prior one, but it cannot be deemed that the relationship between the Defendant and the victim was broken down, and it is difficult to find that the Defendant had the intent to threaten the victim by using the instant pictures, as alleged by the victim.

⑤ On October 19, 2013, after three (3) days from the transmission date of the instant pictures, the Defendant sent the instant pictures to the victim using the Kakakakakao Kakakao Messen on October 19, 2013, and directly stamped the pictures of the building presumed to have been residence of Nonindicted 2 (in light of the Defendant’s behavior, the Defendant’s sending of the instant pictures to the victim was merely aimed at showing the victim’s consent, and it is reasonable to view that the Defendant had no purpose of disclosing the contents of the instant pictures to a third party or causing the victim to feel a sense of sexual humiliation.

6) The Defendant stated that the victim sent the instant pictures through the KaKakao Kakao Kakao Kakao Kakao Kadi, which had shown the date and time indicated in the facts charged of the instant case, to the extent that it is difficult to readily dismiss the said statements in light of the relationship between the Defendant and the victim, and in fact, the victim sent the Defendant a photograph of her husband who was off the upper half of the facts charged of the instant case.

C. Thus, the evidence submitted by the prosecutor alone is insufficient to recognize that the pictures of this case sent by the defendant had the purpose of causing a victim to feel a sense of sexual humiliation or aversion, or inducing or meeting the victim's sexual desire, and there is no other evidence to prove otherwise, thereby accepting the defendant's allegation of mistake and misapprehension of legal principles.

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the subsequent judgment shall be rendered as follows.

Judges Kim Jong-sung (Presiding Justice)