A defendant shall be punished by imprisonment for one year.

Seized evidence 1 to 5 shall be confiscated.

The prosecutor's appeal on the part not guilty (excluding the part not guilty) in the judgment of the court below shall be dismissed.

A. misunderstanding of facts or misunderstanding of legal principles

1) The defendant (the part of the charge)

A) Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Ameras, Use and Screening of Cameras, etc.) due to “sale of photographyed Articles”

The court below determined that the act of selling a total of 77 parts of 59 video images and 18 parts of 18 video images stored by the defendant while holding a video call through the Internet constitutes Article 14(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Violence Crimes, as stated in the facts charged in this part, however, the above provision refers to the case where a person who photographs another person's body directly sells them, and it is not punishable by the above provision. Ultimately, the above 59 video images are only those stored by the defendant in a video call, not those recorded by the defendant, but they are not proved that they were sold against the intent of the victims. Even if the defendant was recorded, the above 18 video images were collected through the Internet. Thus, the court below erred by misapprehending legal principles and finding guilty of this part of the facts charged in light of the fact that the defendant was not directly taken.

B) At 25 seconds of photographed materials as indicated in [Attachment 1] No. 11 per annum, 25 seconds of the list of crimes (hereinafter “crime list”) and each of the filmed materials as indicated in [Attachment 31] were against the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (hereinafter “obscenity”) related to the video-related information and communications networks against the maximum number of players as indicated in the list of crimes No. 38 at 56 seconds of the year, the maximum number of contributors as indicated in No. 40 at 5 seconds of the year, the maximum number of contributors as indicated in No. 51 at 15 seconds of the year, 2/38.

The lower court determined that it is difficult to regard the above videos as being taken of another person’s body, which may cause sexual humiliation or sense of shame, and recognized the innocence as to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Kamerasation and photographing). However, the lower court found the Defendant guilty as to the violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection (hereinafter “Information and Communications Network Utilization and Information Protection Act”), which is in a commercial concurrent relationship. However, if the taken pictures are not contents that may cause sexual humiliation or sense of shame, it does not constitute “obscenity images” under Articles 74(1)2 and 44-7(1)1 of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection (hereinafter “Information and Communications Network Act”). Accordingly, the lower court found the Defendant guilty of this part of the charges,

C) Violation of Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (obscenity) related to each video recorded in No. 418 to 53, 55 to 644, 646, 648, and 650 to 660 of the crime sight list 4

The contributors of the above video is most of the clothes and the above video does not constitute “obscenity video” under the Information and Communications Network Act. Therefore, the lower court found the Defendant guilty of this part of the facts charged. In so determining, it erred by misapprehending the legal doctrine.

2) Prosecutor (not guilty part)

A) Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Ameras, Use of Cameras, etc.) due to the “recording” and the “distribution of photographs by means of information and communications networks”

The victims’ act of using a camera attached to a mobile phone does not constitute “recording” the body of the victims, but merely because of this, it cannot be deemed that the victims have recorded their body. The Defendant’s act constitutes “recording” only when the Defendant uses a separate storage device to record the physical video information of the victims sent in a video phone. Thus, the Defendant’s act constitutes “recording” under Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. Therefore, the lower court erred by misapprehending the legal doctrine that acquitted the Defendant of this part of the facts charged.

B) Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Use of Camera, etc.) due to the “sale of photographyed Articles” against the 15 seconds and 38 minutes of the photographed Articles as indicated in No. 11 per annum 25 seconds of the Criminal Date 25 seconds of the photographed Articles as indicated in No. 38, 4 56 seconds of the year, 4 50 seconds of the year, 4 5 seconds of the shootinged Articles indicated in No. 40, 51 per annum, 15 seconds of the year, 2 minutes of the shootinged Articles.

The court below acquitted the contributors of the above video images on the ground that they are merely the persons exposed to the victim and do not constitute the victim, but they are not included in the scope of indictment under the premise that they do not constitute the victim. The court below acquitted the above contributors who are not included in the facts charged. Therefore, the court below erred by misapprehending the legal principles that acquitted the defendants of this part of the facts charged.

C) The point of violation of Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, etc. (obscenity distribution) related to each video recording No. 7, 23, 24, 31, and 52 (the same as each video recording No. 4 No. 172, 188, 189, 196, and 217)

The aforementioned videos constitute “obscenity” under the Information and Communications Network Act in light of the fact that the Defendant was aware of the fact that it was a video recording that the Defendant sent and sent the Kakakao Stockholm message, but the background and content of the receipt of the messages, and the fact that the Defendant and the victims were obscene at the time of the receipt of the messages. Therefore, the lower court acquitted the Defendant of this part of the facts charged, thereby misapprehending the legal doctrine.

B. Unreasonable sentencing

The sentence of the lower court (two years of imprisonment, 40 hours of order to complete a sexual assault treatment program, three years of order to disclose and notify personal information, and confiscation) is too heavy or unreasonable.

2. Ex officio determination

Before the judgment on the grounds of appeal, the Prosecutor changed the part of Paragraph 2 of the facts charged of this case, " through the Internet, total of 662 images, such as the statement Nos. 4, 605, 407, 409, 411, 412, 413, 414, 122, 136, 165, 289, 297, 318, 369, 371, 372, 404, 406, 407, 409, 416, 412, 414, 414, 413, 12, 122, 122, 136, 136, 136, 136, 164, 375, 371, 376, 464, 45, 466.

However, despite the above reasons for ex officio destruction, the defendant and prosecutor's assertion of misunderstanding of facts and misapprehension of legal principles are still subject to the judgment of this court.

3. Judgment on the Defendant’s mistake of facts or misapprehension of legal principles

A. Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Ameras, Useing and Screening of Cameras, etc.) due to “sale of photographyed Articles

1) Relevant legal principles

The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, the interpretation of the penal law shall be strict, and an excessively expanded interpretation or analogical interpretation of the meaning of the explicit penal law in the direction unfavorable to the defendant is not allowed as it is contrary to the principle of no punishment without the law (see Supreme Court Decision 2012Do4230, Nov. 28, 201

Article 14(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) provides that “a person who distributes, sells, leases, provides, or openly displays or shows photographs against his/her will even if the photographing does not go against the will of the person subject to the photographing at the time of photographing, shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding five million won.” Article 14(1) of the same Act provides that “a person who takes photographs against another person’s will or distributes, sells, leases, provides, or openly displays or shows or shows the photographs so taken shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding ten million won.” According to each of the above provisions, the body of the person subject to photographing under Article 14(2) of the Sexual Violence Punishment Act shall be deemed to have been taken by himself/herself from the ordinary meaning of Article 14(1)5 of the same Act (see, e.g., Supreme Court Decision 2015Da251625.

In addition, the prior and ordinary meaning of “the photographing” under Article 14(1) of the Sexual Violence Punishment Act is “the person, object, and flag shall be taken as a photograph or motion picture.” Since it is apparent that the subject of photographing is “the body of another person who may cause sexual humiliation or shame,” the subject of punishment under the above provision is limited to cases where “the body of another person itself” is taken by using the device such as camera, etc., and it is reasonable to regard the subject of punishment under the above provision as being limited to cases where “the body of another person is taken.” Thus, interpreting that the images containing the body image of another person are included in “the body of another person” under the above provision exceeds the ordinary meaning of legal text, and thus, it is not permissible under the principle of no punishment without law (see Supreme Court Decision 2013Do4279, Jun. 27, 2013).

2) Specific determination

A) According to the evidence duly adopted and examined by the lower court and the first instance court, the following facts are recognized.

① The Defendant connected to “○○○○○ (Internet Address 1 omitted)”, which is a mobile phone hosting program, and stored a program using “△△△△△”, which is a mobile fluorcing system, in which the victims and their video calls are carried out, showing that the victim’s bucks and sexually parts are confined to the female bucks, and led the victims to commit self-defense. The Defendant, using two mobile phones, instructed the victims to enter the word as 1 and take a specific attitude, and stored a mobile flucing system, which is a mobile flucing system in which the victim’s self-defense is installed in advance, [a program that stores the cell phone screen continuously by continuously cutting it].

② Meanwhile, the 18 video images, including Nonindicted Party 1, etc., who the Defendant was in possession of downloaded via the Internet, were taken by the victims in a video call with a person in the name of the victim, and the victims contained the form of the victims’ exposure to the mobile phone camera and self-defense.

③ The Defendant sold, through the Internet, a total of 77 videos stored as above (the video and the video recorded by a person in secret 59, which was stored directly by the Defendant) without the consent of the victims.

B) Comprehensively taking account of the following circumstances revealed by the facts acknowledged as above and the evidence duly admitted and examined at the court below and the court below, 7 parts of the video of 59 parts that the defendant was directly stored and held through the Internet are the storage of the video of 18 parts that the victims who contributed to each video was sent to the defendant or a person in secret name and a person in secret name, and the video of 18 parts that the victims, who contributed to each video, stored the video of 18 parts that the defendant had taken, and thus, they cannot be deemed to constitute the video of 14(2) and (1) of the Sexual Violence Punishment Act in accordance with the aforementioned legal principles. Accordingly, the judgment of the court below convicting the defendant as to this part of the facts charged is erroneous in the misapprehension of legal principles and in misapprehension

(1) The video call refers to allowing the victims to exchange the images and sounds in real time with the monetary parties by combining the video recording function of the cell phone and the video photographing function, and the victims, while making the video call with the Defendant, etc., using the aforementioned recording function, have concealed the form of self-defacing the body part or self-defaculation of the cellular phone, and real-time transmission of the video information passed through the camera siren in digital name was made to the Defendant’s cell phone in the digital name, and the victims cannot be deemed to have taken the image only when the victims have taken their body directly on their own according to their intent.

② The Defendant taken his image and transmitted it to the victims using the mobile phone camera function, and stored the video information transmitted from the victims in his/her cell phone using the △△ program capable of real-time closure and storage of the mobile phone screen. However, the aforementioned △△△ program does not directly take the subject matter using the camera function inside the mobile phone, but continuously cut the image on the mobile phone screen. Ultimately, even if the Defendant stored the video transmitted by the victims in his/her cell phone against the victims’ will, the act of storage cannot be deemed to have directly taken the victims’ body. Thus, the Defendant’s body cannot be seen as the photographed material.

(3) Even if the Defendant took a new image of the video information received from the victims using the △△ program, the subject of the Defendant’s taking pictures is only a image containing the victim’s body condition, not the victim’s body body itself. Furthermore, the interpretation that the image of another person’s body is included in the “other person’s body” under Article 14(1) of the Sexual Violence Punishment Act is beyond the ordinary meaning of the text of the law, and thus, it is not permissible under the principle of no punishment without law.

④ The 18 video images, including Nonindicted 1, etc., who the Defendant was in possession of downloaded through the Internet, were not specifically identified as to how the victims receive the video information from the victims. However, according to the victim’s statement, the victims’ personal body was taken and sent, and then the images were sold via the Internet. As such, it appears that the Defendant was produced in a manner similar to Part 59 of the video images stored in a direct video call. Ultimately, the 18 video images held by the Defendant were deemed to have been directly taken by the victims on their own will, and the evidence submitted by the prosecutor alone was insufficient to acknowledge the fact that the above video is the objects of photographing another person and the body was taken by the victims. Accordingly, it cannot be viewed that the Defendant’s act constitutes the constituent elements of Article 14(2) and (1) of the Sexual Violence Punishment Act (the Defendant’s assertion that the above video is not a “third person,” as it does not constitute the Defendant’s assertion to the effect that the video images were not included in the above paragraph (1) of the same Article).

(b) Violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, etc. (obscenity) related to the video of each motion picture against the maximum number of winners listed in No. 11 per annum 25 seconds of the crime day list, the maximum number of winners indicated in No. 38 per annum, the fourth 56 seconds of the year, the maximum number of winners indicated in No. 40 at 50 seconds of the year, the fourth 50 seconds of the year, the two-minutes of the 15 seconds of the year, and the highest number of winners listed in No. 51 at 38 seconds of the year

With respect to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Samera, etc.”) due to the “sale of videos” on the above contributors, no further determination shall be made in violation of the principle of non-defluence as seen below 4.B. However, since Article 14(2) of the Sexual Violence Punishment Act and Articles 74(1)2 and 44-7(1)1 of the Information and Communications Network Act differ in the legislative intent, protected legal interests, and elements of crime, it shall be determined separately as to the establishment of a violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Communications Network Utilization and Information Protection (hereinafter “Samera, etc.”) and the evidence duly adopted and examined at the court below and the court below, since the above parts of video (hereinafter “Samer, etc.”) are excluded from the above, if other men appear, and if they receive clothes by exposing sex or taking clothes, they constitute a violation of the Defendant’s sexually explicit or unlawful expression, this constitutes a violation of the law.

(c) Violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, etc. (obscenity) relating to each video recorded in No. 418 to 53, 55 to 644, 646, 648, and 650 to 660 of the crime sight list 4.

No. 418 to 553, 555 to 644, 646, 648, and 650 to 660 of the crime sight list 4 No. 418 to 53, 555 to 644, 646, 648, and 650 to 660 are not submitted as evidence, so it cannot be confirmed. The above video is insufficient to recognize that the above video constitutes obscene video, and there is no other evidence to recognize it. Therefore, the judgment of the court below that found the defendant guilty of this part of

4. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principles

A. Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Ameras, Use of Cameras, etc.) due to the “recording” and the “distribution of photographs by means of information and communications networks”

As examined above 3. The victims contributed to 59 parts of video images (the distribution of photographs and photographs) and 18 parts of video videos (the distribution of photographs) held by the defendant with a downloadd through the Internet, cannot be deemed to have been made against the victims' will, and further, it cannot be deemed to have taken a photograph of another person's body". Thus, since Article 14(3) of the Sexual Violence Punishment Act provides that the victim's act of storing video transmitted by the defendant or a person in his name against the victims' will does not constitute an act of photographing the victim's body, it cannot be deemed that the victim's act of spreading video in 18 parts (the distribution of photographs) was committed against the victim's will, and thus, it cannot be deemed that the victim's act of spreading video in 14 (1) of the Sexual Violence Punishment Act constitutes an act of spreading video products with an information and communications network for the purpose of photographing the victim's intent, and thus, it cannot be deemed that the court below's determination of the punishment against the defendant 14 (1) of the sexual Violence Punishment Act is justified.

(b) Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Use of Cameras, etc.) due to the sale of each photographed material to the maximum counterpart contributor at 25 seconds of the crime day list No. 11, 25 seconds of the photographed material as indicated in No. 38 at 56 seconds of the year, four-fourths of the highest counterpart contributor at 56 seconds of the year, 4 minutes at 50 seconds of the year, 50 seconds at 50 seconds of the year, 2 minutes at 38 seconds of the crime day list

With respect to this part of the facts charged as a crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amerasia), a prosecutor did not specify who is the victim of this case from each of the above videos funded by one or more persons. The lower court acquitted the Defendant on the ground that it is difficult to view the Defendant not guilty on the ground that, in light of its uniform and behavior, some of the contributors (the 25 seconds recorded on No. 11 per annum 11 per annum in the crime sight list, the largest contributor per annum, the photographer recorded on No. 38 per annum 46 seconds at 5 minutes per annum, the lowest contributor per annum, the photographer recorded on No. 40 at four minutes per annum at 5 seconds per annum, and the photographer recorded on No. 51 at 15 seconds per annum, 2 minutes per annum, and 38 seconds per annum) have taken the body of another person who may cause sexual humiliation or humiliation in light of their clothes and behavior.

However, the prosecutor clearly asserts that the above contributors were not prosecuted as the victim in the statement of grounds of appeal. As long as the prosecutor's office does not regard the part concerning the above contributors as included in the scope of prosecution, the court below's decision of innocence as to the part concerning the above contributors is in violation of the principle of no dismissal. Therefore, the court below erred by misapprehending the legal principles on the principle of no dismissal from office, thereby affecting the conclusion of the judgment, and this part of the facts charged are not included in the scope of prosecution, and thus, it did not proceed further to determine whether

(c) The point of violation of Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (obscenity distribution) related to each video recorded on No. 7, 23, 24, 31, and 52 (the same as each video recorded on No. 4 per annum 172, 18, 188, 189, 196, and 217) per annum 1 per year;

The following circumstances revealed by the evidence duly adopted and examined at the court below and the court below: ① the above video was stored in the Kakakao Kakao Kakao Kakao Kakao Kakao Kakao Kao Kao Kao Kao Kao Kao Kao that the defendant had given and received the victims and victims; ② the contents are the conversations between the defendant and the victim before it was made, or the defendant demanded specific attitude, behavior, etc. that the defendant wants in the course of the video call and the response of the other party (the video call appears to have used another mobile phone). ③ However, the above message contains extreme and sexual expressions as soon as possible, and the above message contains only some parts of the video as a whole, and there is no reason to believe that the defendant's act was inconsistent with the concept of sexual expression or behavior by the prosecutor. Therefore, the court below's allegation that the above video was inconsistent with the aforementioned method and it is not justified.

5. Conclusion

Therefore, the judgment of the court below on conviction has the above reasons for ex officio reversal and the defendant's appeal has some reasons. Thus, pursuant to Articles 364(2) and 364(6) of the Criminal Procedure Act, without examining the judgment on the argument of unfair sentencing by the defendant and the prosecutor, the part of the judgment of the court below's conviction and one of the reasons for not guilty in the ordinary concurrent relation are reversed, and the prosecutor's appeal on the remaining portion of the judgment of the court below is dismissed pursuant to Article 364(4) of the Criminal Procedure Act since there is no reason for not giving rise to the prosecutor's appeal on the non-guilty portion except the part of the reasons for not guilty among the judgment of the court below. It is so decided as per Disposition. (No. 7,23,24,31,52 of the list of crimes No. 1 year, and the court below acquitted the defendant as to the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use of obscenity) due to information and communications networks (obscenity).

Accordingly, the Defendant sold obscene images through information and communications networks.

1. Each protocol of seizure;

1. Investigation report- Statement of the data submitted by Nonindicted 3 (the purchased screen pictures for storage of obscene materials) and images;

1. Each statement made by the police on Nonindicted 3, Nonindicted 4, Nonindicted 5, Nonindicted 6, Nonindicted 7, Nonindicted 8, Nonindicted 9, Nonindicted 10, Nonindicted 11, Nonindicted 12, Nonindicted 13, Nonindicted 14, Nonindicted 15, Nonindicted 16, and Nonindicted 17

1. Videos specified in subparagraph 1 of the certificate;

Articles 74(1)2 and 44-7(1)1 (general) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and Selection of Imprisonment;

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

However, in light of the content and scale of the crime by distributing to many people via the Internet with high possibility of spreading obscene videos of 388, and taking profits of 84,130,000 won, etc. In particular, some of the instant videos produced by arbitrarily storing and video recording without the consent of their contributors, and such videos were spreaded without permission, and thus, they seem to have suffered considerable mental suffering and shocks due to the loss that the said contributors suffered from irrecoverable damage.

In full view of the aforementioned circumstances and the Defendant’s age, character and conduct, environment, family relationship, motive, means, and consequence of the crime, various sentencing conditions shown in the instant pleadings, including the circumstances after the crime, etc., the punishment as ordered shall be determined.

A. Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Use of Cameras, etc.) due to the “distribution of photographs using information and communications networks,” which is the primary charge under Article 2 of the facts charged in the instant case

피고인은 2016. 1. 8.경부터 같은 해 12. 18.경까지 인터넷 SNS ‘□□□(인터넷주소 2 생략)’에 ‘◇◇◇◇◇◇◇◇◇◇◇’라는 아이디로 접속하여, “한국 근육.훈영상 공유합니다. 일부 스샷이고요. 진짜 퀄리티 보장합니다..(중략)..신세계.시티트레이너123.인스타일탈 일반남 골든하는 거 다잇어요. 라인 (번호 생략)”이라고 광고를 하고, 스마트폰 메신저 프로그램 ‘라인(LINE)’을 이용하여 구매자와 연락한 후, 파일 공유사이트 ‘☆☆ ☆☆☆☆(이터넷주소 3 생략)’에 음란한 영상을 게시하여 위 구매자로 하여금 다운로드 받고 피고인의 아버지 공소외 2 명의 ▽▽은행 계좌로 판매대금을 입금하게 하는 방법으로 피고인이 피해자들 몰래 직접 촬영한 별지 범죄일람표 1 기재 64편의 동영상 및 별지 범죄일람표 2 중 연번 67 내지 84와 같이 피고인이 인터넷을 통해 다운로드 받아 소지하고 있던 피해자 공소외 1 등 18명의 의사에 반하여 몰래 촬영된 동영상 18편 등 총 82편의 동영상을 인터넷을 통하여 불특정 다수의 구매자들에게 5,000~100,000원에 판매하는 방법으로 영리를 목적으로 카메라를 이용하여 성적 욕망 또는 수치심을 유발할 수 있는 다른 사람의 신체를 그 의사에 반하여 촬영된 촬영물을 정보통신망을 이용하여 유포하였다.

B. Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Ameras, Use of Cameras) due to the “sale of photographyed Articles”, which is the ancillary charge under Article 2 of the facts charged

피고인은 2016. 1. 8.경부터 같은 해 12. 18.경까지 인터넷 SNS ‘□□□(인터넷주소 2 생략)’에 ‘◇◇◇◇◇◇◇◇◇◇◇’라는 아이디로 접속하여, “한국 근육.훈영상 공유합니다. 일부 스샷이고요. 진짜 퀄리티 보장합니다..(중략)..신세계.시티트레이너123.인스타일탈 일반남 골든하는 거 다잇어요. 라인 (번호 생략)”이라고 광고를 하고, 스마트폰 메신저 프로그램 ‘라인(LINE)’을 이용하여 구매자와 연락한 후, 파일 공유사이트 ‘☆☆ ☆☆☆☆(이터넷주소 3 생략)’에 음란한 영상을 게시하여 위 구매자로 하여금 다운로드 받고 피고인의 아버지 공소외 2 명의 ▽▽은행 계좌로 판매대금을 입금하게 하는 방법으로 피고인이 스마트폰 영상통화를 통해 피해자들로 하여금 자위행위를 하도록 유도한 뒤 그 모습을 동영상 파일로 저장한 별지 범죄일람표 1 기재 64편의 동영상 및 피고인이 인터넷을 통해 다운로드 받아 소지하고 있던 공소외 1 등 피해자 18명이 성기를 노출하며 자위행위를 하는 모습 등이 카메라 등을 이용하여 촬영된 별지 범죄일람표 2 중 연번 67 내지 84 기재 18편의 동영상 합계 촬영물 82편을 인터넷을 통하여 별지 범죄일람표 3 기재와 같이 피해자들의 의사에 반하여 총 2,492회에 걸쳐 불특정 다수의 구매자들에게 합계 84,129,701원을 받고 판매하였다.

Accordingly, the defendant sold the photographs taken by another person's body, which may cause sexual humiliation or shame, against the victims' will.

C. Violation of Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (PPP) related to each video recorded in No. 4, 172, 188, 189, 196, and 217 (the same as each video recorded in No. 1, No. 7, 23, 24, 31, and 52) of the crime list under paragraph (2) of the facts charged of this case

피고인은 2016. 1. 8.경부터 같은 해 12. 18.경까지 인터넷 SNS ‘□□□(인터넷주소 2 생략)’에 ‘◇◇◇◇◇◇◇◇◇◇◇’라는 아이디로 접속하여, “한국 근육.훈영상 공유합니다. 일부 스샷이고요. 진짜 퀄리티 보장합니다..(중략)..신세계.시티트레이너123.인스타일탈 일반남 골든하는 거 다잇어요. 라인 (번호 생략)”이라고 광고를 하고, 스마트폰 메신저 프로그램 ‘라인(LINE)’을 이용하여 구매자와 연락한 후, 파일 공유사이트 ‘☆☆ ☆☆☆☆(이터넷주소 3 생략)’에 음란한 영상을 게시하여 위 구매자로 하여금 다운로드 받고 피고인의 아버지 공소외 2 명의 ▽▽은행 계좌로 판매대금을 입금하게 하는 방법으로 남성이 성기를 노출하며 자위행위를 하는 모습 등이 촬영된 별지 범죄일람표 4 연번 172, 188, 189, 196, 217, 418∼553, 555∼644, 646, 648, 650∼660 기재 각 동영상 총 244편을 인터넷을 통하여 별지 범죄일람표 3 기재와 같이 총 2,492회에 걸쳐 불특정 다수의 구매자들에게 합계 84,129,701원을 받고 판매하였다.

Accordingly, the Defendant sold obscene images through information and communications networks.

2. Determination

The facts charged in this part of the facts charged constitute a crime or a case where there is no evidence of a crime, and thus, the innocence should be pronounced pursuant to the former or latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as the court found the Defendant guilty of violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Communications Network Utilization and Information Protection, which is related to the commercial concurrence or universal concurrence

Judges Shin Young-ro (Presiding Judge)

1) The Defendant is also dissatisfied with the grounds of appeal regarding the violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, etc. (obscenity) concerning each video-related information and communications network as indicated in No. 7, 23, 24, 31, and 52 of the crime sight table No. 1 year, but the Defendant was acquitted in the lower court as to the above facts charged (Article 4

Note 2) The Defendant’s act of self-defense through a smartphone image call is 64 parts of the video that had led the victims to do so and stored the image as a video file, and 18 parts of the video that were taken by the Defendant using a camera, etc., such as Nonindicted Party 1, etc., who was in possession of a downloadd through the Internet, exposed to sexual organ by 18 victims, such as Nonindicted Party 1, etc., and self-defense.

3) Although the lower court stated this part of the facts charged as the primary and preliminary facts charged, it is merely a statement of the same criminal facts with respect to the same video as the content thereof, and thus does not seem to have a substantial primary and preliminary relationship, it is not distinguishable.