A. The Defendant merely notified the victim of the fact and did not send a text message to the victim, and thus does not constitute a violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

B. The punishment of the lower court (six months of imprisonment, two years of suspended execution, two years of protection observation) is too unreasonable.

2. Determination

A. Article 74(1)3 and Article 44-7(1)3 of the Act on Promotion of the Use of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) on the assertion of misunderstanding of fact-finding doctrine punishs the act of repeatedly reaching other parties any codes, text, sound, image, or motion picture that arouses fear or apprehension through information and communications networks.

Here, whether the phrase “the act of repeatedly delivering to another person” constitutes “the act of repeatedly causing fear or apprehension” ought to be determined by comprehensively taking into account the content and method of expression sent by the Defendant to the other party, the relationship between the Defendant and the other party, the developments leading up to sending the text, the frequency of sending the text, circumstances before and after, and the other party’s situation (see, e.g., Supreme Court Decision 2013Do7761, Dec. 12, 2013). The following circumstances acknowledged by the evidence duly adopted and examined by the lower court in light of the aforementioned legal doctrine, namely, ① the Defendant unilaterally sent the victim text messages on 23 occasions from Oct. 23 to Nov. 15, 2016 to Nov. 15, 2016; ② the Defendant sent the message to the other party during the period from Nov. 11, 2016 to Nov. 15, 2016 to Nov. 22, 2016.

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