Water Potables

A. Legal principles

It is only posted a Saturday file which is a kind of data file in which the sharing information of a video file is stored, and it is not distributed or openly displayed obscene images themselves.

B. Unreasonable sentencing

The punishment of the court below (one year of imprisonment) is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

The Defendant also asserted the same purport in the lower court, and rejected the lower court’s decision in detail. As indicated in its reasoning, the act of providing a siren file with respect to obscene images on the Internet site on which many and unspecified persons may use it may be deemed as having the same effect as directly displaying obscene images in substance by de facto controlling and using an obscene video file, which is in a situation recognizable by many and unspecified persons, as a means to provide a given file. If multiple and unspecified persons may have access to obscene images without any particular restriction, it is reasonable to deem that such act meets the requisite elements for distributing or openly displaying obscene images by deeming it as a whole.

B. Determination on the assertion of unreasonable sentencing

Based on the statutory penalty, the sentencing is a discretionary judgment that takes place within a reasonable and appropriate scope, taking into account the factors constituting the conditions of sentencing under Article 51 of the Criminal Act, as well as the ex post facto and in light of the nature, etc. of the appellate court, where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect them. Although the sentence of the first instance falls within the reasonable scope of discretion, it is desirable to reverse the judgment of the first instance on the sole ground that the sentence of the first instance is somewhat different from the appellate court’s opinion, it is desirable to refrain from imposing a sentence that does not differ from the first instance court (Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015). The lower court’s sentencing did not change without changing the conditions of sentencing, and the lower court’s sentencing does not seem to deviate from the reasonable scope of discretion, taking account of the following circumstances, such as the Defendant’s age, character, environment, circumstances, and consequence of the crime.

Therefore, the defendant's above assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Namnam-do

Judges Choi Jong-ap