1. As to fraud

Examining the reasoning of the judgment below in light of the records, the court below was just in finding the Defendant not guilty of fraud among the facts charged in this case for reasons as stated in its holding, and there was no error exceeding the bounds of the principle of free evaluation

2. As to the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (obscenity)

A. “obscenity” as stipulated in Article 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. means that a person’s sexual expression or behavior is clearly expressed or expressed in an explicit manner to the extent that the person’s dignity and value, which has the personality to be respected and protected, beyond simply stimulating or harming that person’s sexual humiliation may be evaluated as being seriously damaged and distorted, by stimulating the person’s sexual desire and undermining the normal sense of sexual humiliation. In determining whether a person’s expressive material is obscene, not subjective intent of the producer, but objective and normative evaluation should be made from the perspective of the average society’s perspective in light of the society’s sound social norms (see, e.g., Supreme Court Decision 2013Do586, May 35, 2013).

B. The lower court found the Defendant not guilty of this part of the charges on the grounds that it is difficult to readily conclude that: (a) the language and text, images, or motion pictures as indicated in this part of the facts charged are extracted from the visual images that have been actually offered to paid members; and (b) each of the above images or motion pictures does not directly express or distort the sex organs of both men and women; (c) it is true that each of the above language and text, etc. is considerably indecent and disturbed; and (d) it is difficult to readily conclude that the sexual images or motion pictures were clearly expressed or expressed to the extent that they may seriously undermine or distort the human dignity and value and are harmful to society as they are the subject of regulation under the criminal law.

C. According to the evidence duly adopted and the reasoning of the lower judgment, images or videos recorded in this part of the facts charged are those subject to deliberation by the Korea Media Rating Board, and are centered on patriotic acts between men and women, emotional sponsor, etc., and show sexual intercourse between men and women without direct and explicit exposure to gender. In light of the legal principles as seen earlier, such images or videos, in light of the overall observation and evaluation, beyond the degree that their contents are considerably indecent and disturbed, cannot be readily concluded that they are sexually expressed or expressed in an explicit manner to the extent that they are likely to seriously undermine and distort human dignity and value as they are the subject of regulation under the criminal law.

In the same purport, the decision of the court below that acquitted the Defendant of the part concerning the obscene video display and distribution through the information and communications network is just, and there is no error in the misapprehension of legal principles as argued in the Grounds for Appeal.

D. However, the language and text of this part of the facts charged describe rape, sexual intercourse with a minor, and sexual intercourse between relatives as indecent and explicit expressions. This is a description of unlawful and anti-social sexual intercourse as indecent and explicit expressions. In light of the aforementioned legal principles, it has been limited to the degree that it can be judged that the human dignity and value is seriously damaged and distorted beyond the degree that it merely renders it indecent or disturbed, and it cannot be found that the literary, artistic, ideological, scientific, medical, or educational value of n, etc. is found. Thus, it is reasonable to view that this constitutes “obscenity” as stipulated in Article 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Nevertheless, the lower court rendered a not guilty verdict on the part concerning the display and distribution of obscene language through the information and communications network among the facts charged is erroneous in the misapprehension of legal doctrine regarding the obscenity of representations. The prosecutor’s assertion pointing this out is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and this part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)