A. misunderstanding of facts and misapprehension of legal principles

The court below erred by misapprehending the legal principles on obscenity in the crime of violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, etc. (obscenity distribution), and by misunderstanding the facts, thereby acquitted this part of the charges.

B. Unreasonable sentencing

The sentence of the lower judgment (Defendant 1: Imprisonment with prison labor for one year, two years of suspended sentence, 160 hours of time, Defendant 2: Imprisonment for one year of suspended sentence, two years of suspended sentence and 160 hours of time, Defendant 3: Imprisonment for eight months of suspended sentence, two years of suspended sentence, and 120 hours of time) is too unreasonable.

2. Determination

A. Judgment on misconception of facts and misapprehension of legal principles

1) This part of the facts charged

No one shall distribute obscene language and text through an information and communications network.

피고인 1, 피고인 2, 피고인 3은 공모하여 2013. 6. 27.부터 2014. 3. 31.까지 위 피고인 4 주식회사 사무실에서 대량문자메시지 발송사이트인 ‘m.smsrun.kr’ 등을 이용하여 미리 수집한 (전화번호 생략) 등 불특정 다수의 휴대전화기에 “흥분한 내~꺼~ 벌어지는 거 보러 오실래요?”, “혼자 집에 있는데 봉~지가 벌렁거려 참을 수가 없어^^”, “쪼임 좋고 물 많아요~같이 해요~”, “살짝 벌린 허벅지 사이 볼래? 전 준비 됐어요”, “질펀하게 싸 주는 절정을 느끼는 여자예요”, “질~조임 장난 아니게 꽉 조여 먹~을거면 방~잡어”, “혼자~야?봉~지맛~볼거면 밖에서 만나~ 씻~고 갈게”, “홀~딱 벗고 있어 만지는 거 볼~래요?”, “일주일 넘게 한번도 못했어 근처 모텔서 만남신청”, “여긴 음란~하게~ 만나서~ 봉지도 벌~려주는 곳”이라는 등의 음란한 문언이 기재된 31,342건의 문자메시지를 전송하였다.

Defendant 4 Co., Ltd. committed a violation of distribution of obscene language and text through the information and communications network as seen above by Defendant 1, the representative of Defendant 1, at the above date and place.

2) The judgment of the court below

Although the contents of the above text messages mainly express sexual intercourse between men and women, women’s sexual organ, etc., they are only used without direct exposure to female sexual organ or sexual organ, and only the original text messages have been used. In light of the overall observation and evaluation of text messages, the contents of the text messages feel indecent and disturbed. However, beyond this degree, it cannot be readily concluded that such text messages expressed or expressed sexual intercourse or behavior in an explicit manner to the extent that it can be deemed that they seriously damaged and distorted human dignity and value as the subject of regulation under the criminal law, and that there is no other evidence to acknowledge obscenity, and thus, the lower court acquitted the Defendants pursuant to the latter part of Article 325 of the Criminal Procedure Act.

3) Determination of the immediate deliberation

“obscenity” under Article 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. refers to an expression or expression of sexual prejudice or behavior in an explicit manner to the extent that it seriously damages and dint the human dignity and value of a person, who has the personality to be respected and protected, beyond simply emphasizing that it would be indecent or disturbed, in view of the overall observation and evaluation of the expression as a whole, by stimulating ordinary people’s sexual desire, and undermining the normal sense of sexual humiliation. It refers to an expression or expression of the expression or behavior in an explicit manner to the extent that it can be deemed that the expression or expression seriously damages and dints the human dignity and value of the person who has the personality to be respected and protected. In light of ordinary social norms, it refers to an expression or expression that only appeal for sexual interest and does not have any literary, artistic, scientific, medical, medical, or educational value. In determining the obscenity of a work, not subjective intent of the producer, but from the average of the society’s society, it should be evaluated in accordance with objective and sound social norms (see, 2015Do.

In light of the above legal principles, in full view of the judgment of the court below and the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, the court below acquitted this part of the facts charged is just and acceptable, and there is no error of law by misunderstanding legal principles or misunderstanding of facts as alleged by the prosecutor

① The aforementioned text messages merely describe a woman’s sexual organ and the words “sexual intercourse” between men and women, and do not directly expose or express the sexual organ of both men and women, and the content thereof does not relate to unlawful and anti-social sexual intercourse.

② It is difficult to see that the content or the method of expression of the foregoing text message alone leads to a shot sense that the foregoing text message is considerably indecent and disturbed, and to such an extent that it may be deemed that the human dignity and value was seriously damaged and distorted as the subject matter of regulation under criminal law, it is difficult to view that the content or the method of expression of the foregoing text message expressed or distorted sexually the sexual prejudice or act by an explicit method.

B. Determination on the assertion of unfair sentencing

In light of the fact that personal information leaked without the consent of the subject of information is likely to be abused in another criminal act and the personal and social damage caused by the divulgence of personal information is not small, the crime of this case committed by the Defendants as personal information controllers is not good.

However, all of the crimes in this case are recognized by the Defendants, the Defendants’ discontinuance of the business of providing telephone information service as in this case and refuse to repeat the crime, the Defendants did not have any record of punishment for the same crime (in the case of Defendant 1, there is no criminal record exceeding the fine), the personal information provided by the Defendants seems not to be misused for criminal acts, and in full view of the Defendant’s age, character and conduct, circumstances and motive leading to the crime in this case, and all other matters on the sentencing as indicated in the records and arguments in this case, the sentence of the lower judgment is too uneasible and unreasonable. Accordingly, the Prosecutor’s assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, the prosecutor'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 Park Jong-dae (Presiding Judge)