Defendant 1 shall be punished by imprisonment for a year and six months, and by imprisonment for a term of three years, respectively.

To order the Defendants to complete a sexual assault treatment program for 40 hours.

The evidence No. 1, 2, 3, 5, 7, and 8 of the Seoul Central District Prosecutors' Office that was seized in 2019 shall be confiscated from Defendant 2.

1,163,469,00 won shall be additionally collected from Defendant 2.

The amount equivalent to the above additional collection charge shall be ordered to be paid to Defendant 2.

A. misunderstanding of facts and misapprehension of legal principles (Defendant 2)

Defendant 2 (Defendant 2 of the Supreme Court’s judgment) did not recognize that child and juvenile pornography may be distributed in the course of public relations because he/she did not participate in public relations activities, so there was no intention to do so.

In addition, with regard to the calculation of the amount of additional collection, Nonindicted 1, 2, 3, 4, and 5 (hereinafter “Nonindicted 1, etc.”) from among accomplices, they cannot specify the amount that they received in addition to the amount due to their respective shares, which they received in addition to the amount due to their shares. Thus, in the end, it is impossible to determine the amount distributed among accomplices, and thus, it is necessary to confiscate and collect the amount equally divided from accomplices. However, the court below erred in the misapprehension of legal principles since it calculated the additional collection charge in accordance with their shares ratio.

B. Unreasonable sentencing (Defendant 2 and Prosecutor)

With respect to each sentence of the lower court against the Defendants (Defendant 1: 1: 2 months of imprisonment, 2 years of probation, etc.; 2: 3:6 months of imprisonment, etc.), the prosecutor asserts that the prosecutor is deemed to be too uneasible and unfair, and that Defendant 2 is too unreasonable.

2. Ex officio determination

The grounds for appeal shall be examined ex officio prior to the judgment.

2. From among the criminal facts of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials), the prosecutor: (a) 2.2. Of the criminal facts of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials), the portion of the conversation at “○○○○○○○○○○ one” open hosting 1 to publicize illegal gambling sites; (b) 6. 6. 6. “In collusion with Nonindicted 4, etc., the Defendant conspired with the Defendant with Nonindicted 4, thereby making use of obscene materials for profit; (c) Defendant 2. 3. 2. Of the criminal facts of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials); (d) the portion of the conversation at “○○○○○○○○○○○○○○○○○○○ one” was made to change the contents of the children’s obscene materials to the Act on the Protection of Children and Juveniles against Sexual Abuse, thereby making the Defendant’s 1 and juveniles’s pornography.

However, despite the above reasons for ex officio reversal, Defendant 2’s assertion of mistake of facts and misapprehension of legal principles is still subject to the judgment of this court within the scope of determining the modified facts charged, and this is examined in the below.

3. Determination

A. As to Defendant 2’s assertion of mistake of fact

In relation to accomplices who are co-processed with two or more persons in a crime, the conspiracy does not require any legal penalty, but is a combination of two or more persons to jointly process and realize a crime. If the combination of intent is made in order or impliedly, the conspiracy relationship is established. As long as such conspiracy was made, a person who does not directly participate in the conduct is held liable as co-principal for the other co-principal’s act (see Supreme Court Decision 2013Do5080, Aug. 23, 2013).

According to the evidence duly adopted and examined by the court below and the court below, the defendants conspired with the non-indicted 2, the non-indicted 1, and the non-indicted 1 to recruit members of the Internet gambling site by using the open hosting room for the purpose of sharing obscene materials, and the defendant 1 can recognize the fact that the defendant 1 was engaged in the business of open hosting for children and juveniles by committing an act in accordance with the above public offering.

As long as Defendant 1, a co-principal, was engaged in the conduct of a co-crime and carried out a child or juvenile pornography, even though Defendant 2 was directly involved in the conduct of the crime or was aware of the method thereof in detail, the relationship of conspiracy cannot be denied. The above argument by Defendant 2 is without merit.

B. As to Defendant 2’s assertion of misapprehension of the legal principle on additional collection amount

Where several persons jointly obtain profits from similar acts, the amount of money distributed, i.e., the profit actually accrued, should be collected separately. Meanwhile, the expenses incurred by the criminal to obtain criminal proceeds are nothing more than the method of consuming criminal proceeds even if they have been disbursed from criminal proceeds (see, e.g., Supreme Court Decision 2018Do13969, Dec. 28, 2018).

According to the evidence duly adopted and examined by the lower court and the first instance court, Defendant 2 can be found to have stated that, with respect to the share in the profit, Defendant 2 stated that he himself 45%, Nonindicted 6 20%, Nonindicted 7 10%, Nonindicted 1, etc. and Nonindicted 1, etc. received money in addition to the profit.

The money received from Nonindicted 1, etc. is merely a payment for the actual provision of labor, and thus cannot be deducted from criminal proceeds. The profit ought to be deemed to have been distributed to the Defendant and other accomplices in proportion to their respective shares. Therefore, Defendant 2’s above assertion on the premise that the money in the name of the benefits received by Nonindicted 1, etc. is a distribution of profit is without merit.

4. Conclusion

Although Defendant 2’s assertion of misunderstanding of facts and misapprehension of legal principles is without merit, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and the following decision is rendered, without examining the allegation of unfair sentencing by Defendant 2 and the prosecutor.

[Grounds for multi-use Judgment]

Criminal facts and summary of evidence

2. The summary of the facts of the crime acknowledged by the court below and the evidence related thereto are as follows: Defendant 1 2. Of the facts of the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscenity), Defendant 2. Pursuant to the judgment of the court below, “○○○○○○○ Open Open Open Open Open Open Open Open Open Open Open Open Open △△△△1”, and Defendant 6. Pursuant to Defendant 4, etc., Defendant 4 conspired with Nonindicted 4, etc., Defendant 2 in collusion with Defendant 4 for a commercial purpose, and Defendant 2. As such, Defendant 2 of the facts of the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscenity), the portion of the conversation “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s video site to cite and 5 children’s obscenity.”

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 247 of the Criminal Act (Establishment of Gambling Space, Selection of Imprisonment), Article 11(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the openly displaying of child or juvenile pornography for profit-making) (Article 74(1)2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.) and Article 44-7(1)1 of the Criminal Act (the openly displaying of obscene images, the selection of imprisonment), Article 30 of the Criminal Act

1. Aggravation of concurrent crimes (defendants);

The former part of Article 37, Article 38(1)2, Article 50, and the proviso of Article 42 of the Criminal Act

1. Order to complete a program;

Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Confiscation (Defendant 2);

Article 48(1)1 and 2 of the Criminal Act

1. Collection (Defendant 2);

○ Applicable Act: Article 48(2) of the Criminal Act; Article 10(1) of the Act on Regulation and Punishment of Criminal Proceeds Concealment

○ The basis for calculation: Defendant 2’s calculation of 45% of the revenue shares of Defendant 2 recognized by Defendant 2 in the suspect examination protocol of Defendant 2 [the sum of KRW 405,000,000,000, monthly income of KRW 150,000 per month during the first six months and KRW 900,000,000, monthly income of KRW 200,000, monthly income of KRW 1,305,000, monthly income of KRW 141,531,00,000, deducted from Defendant 2’s monthly income of KRW 1,163,469,00]

1. Order to make provisional payment (Defendant 2);

Article 334(1) of the Criminal Procedure Act

Disclosure and notification of personal information, and exemption from employment restriction orders (defendants)

In full view of the fact that the Defendants did not have any history of punishment for sexual assault or sex crime, the Defendants’ age, social relation, details and methods of the crime, circumstances after the crime, and the fact that the risk of recidivism of sexual assault crime appears to be low, and that the Defendants might have the effect of preventing the recidivism even with the completion of the registration of personal information and the sexual assault therapy, and other circumstances such as the social benefits expected by the disclosure order and notification order, the effect expected by the prevention of the sexual assault crime, the disadvantages and anticipated side effects of the Defendants, etc., Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1), the proviso to Article 50(1), the proviso to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and the proviso to Article 59-3(1) of the Act on Welfare of Persons with Disabilities, the disclosure order and notification order shall not be issued.

Registration and submission of personal information

Where a conviction becomes final and conclusive on each crime in the judgment, the Defendants are subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and they are obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act.

Reasons for sentencing

The act of distributing obscene materials produced by using children and juveniles obstructs the healthy growth and development of children and juveniles who have yet to form a complete sexual identity and values, and the act of promoting the distorted adult awareness and abnormal values of children and juveniles to the persons who have access to obscene materials, which are of great social harm and are of great character of crime. In particular, if it is for profit-making purposes, its illegality is larger.

In full view of the circumstances taken into account by the lower court and the Defendants’ age, character and conduct, environment, the circumstances leading to the instant crime and circumstances after the instant crime, etc., the sentence as ordered shall be determined by comprehensively taking into account the following factors:

Defendants’ assertion

The Defendants asserts that the objective of profit is not recognized, since they did not gain profits or pursue profits through the distribution of obscene materials, since they opened the Internet gambling place and received profits.

"Profit-making purpose" under Article 11 (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse means an intention to pursue an intention or profit to obtain property benefits in a specific violation prescribed by law (see Supreme Court Decision 2001Do1859, Jul. 11, 2003).

The Defendants’ display of obscene materials in order to publicize the Internet gambling place had the objective of promoting the gambling place, which can be seen as an intent to gain property benefits. The Defendants’ assertion is without merit.

Judges Cho Jae-young (Presiding Judge)