[2] The case holding that Gap's act of sending text messages No. 2 at intervals of Handphones from Eul with continuous demand for repayment does not constitute "the act of repeatedly reaching words causing fear or apprehensions" under Article 74 (1) 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. on the ground that it cannot be readily concluded that the act of sending text messages No. 2 at intervals of Eul is a series of repeated acts

[2] The case holding that Gap's act of sending text messages No. 2 at intervals of Handphones of Eul with continuous demand for repayment related to the return of investment proceeds cannot be concluded as a series of repeated acts, and the circumstance is that the victim's illegal insult is not "act of repeatedly reaching a sense of fear or apprehension" under Article 74 (1) 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., on the ground that the victim's act of sending text messages No. 2 cannot be concluded as a series of repeated acts.

1. Regarding ground of appeal No. 1

The selection of evidence and the fact-finding shall be within the full authority of the fact-finding court unless they are against logical and empirical rules, and the judgment of the court below is erroneous in failing to exhaust all necessary deliberations or violating the rules of evidence, and thus, the ground of appeal pointing out that this part of the ground of appeal is erroneous.

2. Regarding ground of appeal No. 2

Article 74(1)3 and Article 44-7(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. punishs “a person who has reached another person repeatedly with the words causing fear or apprehensions through an information and communications network.” This crime requires repetition of certain acts creating fears for the other party through an information and communications network as stipulated under the above provision under the elements of the crime. In addition, in light of the legislative intent of the above, in order for each act to constitute a series of uneasiness creation by using the above information and communications network to be considered as such, each act must be considered as a series of repeated acts because it is closely related with one another, such as the time and place, similarity of methods, the same opportunity, and the continuation of a criminal, which cannot be evaluated as such, and in cases where a single or non-feasible act was conducted, it shall not be punished for the crime of intimidation or creation of apprehensions under the Punishment of Minor Offenses Act, regardless of the specific contents and degree of the language of the crime, etc.

The court below affirmed the defendant's assertion that the defendant was guilty on August 24, 2007, that the defendant, who continued to be urged by the victim to pay the money for investment in the life insurance company as an insurance solicitor of the life insurance company, failed to pay the money by the victim's handphone, and was urged by the victim to pay the money for the investment, at around 01:0 on August 24, 2007, "I are waiting to do so. I are waiting to do so. I am Ra, Ra, la, la, la, la, la, la, la, and ga." At around 22:20 on the 25th of the same month, "I have been well frightened. I have my own kn't kn't kn't kn't kn't kn't kn't kn't kn't kn't kn's hand."

However, it is not easy to conclude that the sending of text messages to the victim two times a day at intervals as indicated in the facts charged is a series of repeated acts (see Supreme Court Decision 2008Do10506, supra). If the following circumstances are revealed in the process of sending each of the above text messages to the victim before the sending of the above text messages, i.e., the data stored in the text messages prior to the sending of the victim, i.e., whether it is adequate to recognize the Defendant’s act of sending the victim’s text messages to the victim’s family members by taking into account the following circumstances: “I will change the morale, Earar, his wife, and I will come to see whether I would have come to the next to the Defendant’s family members?” The Defendant’s act of sending such text messages to the Defendant’s family members, such as the Defendant’s wife, is consistent with the Defendant’s wife, and the Defendant’s act of sending the victim’s text messages to the Defendant’s family members at any time before and after the Defendant’s each of this case’s testimony was made by the Defendant.

Nevertheless, the court below erred by misapprehending the legal principles on the crime of violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., thereby affecting the conclusion of the judgment, which affected the conclusion of the judgment, where the court below maintained the judgment of conviction of the first instance court without thoroughly examining the fulfillment of the elements of each of the instant text messages in relation to the repetition of the remaining sending of text messages only.

The defendant's ground of appeal, including the purport of pointing this out, has merit.

3. Conclusion

Therefore, the judgment of the court below is reversed (the whole judgment of the court below is reversed, since a single sentence is imposed on all concurrent crimes under the former part of Article 37 of the Criminal Act as to all concurrent crimes), and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)