2019No726 Violation of Act on Promotion of Information and Communications Network Utilization

A

Defendant

Original sentence, promotion of clothes (public trial)

Law Firm Taewon

Attorney Cho Yong-ho

Seoul Eastern District Court Decision 2019Gohap108 Decided May 14, 2019

December 19, 2019

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) Since the victim expressed his/her intention not to punish the defendant as to the act of sending text messages to the criminal investigation agency, the dismissal of the prosecution shall be sentenced.

2) There is no fact that the Defendant sent the victim any text that arouses fear or apprehension, and the Kakao Stockholm message.

3) Simple repeated phone calls do not constitute “the act of repeatedly delivering to another party any codes, words, sound, image, or motion picture that arouses fear or apprehensions,” as prescribed by the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and in view of the circumstances leading up to the Defendant’s act, illegality as a justifiable act is excluded.

B. Unreasonable sentencing

The punishment of the lower court (one million won of a fine) is too unreasonable.

2. Summary of the facts charged

No person shall allow any other person to receive information with a content that arouses fear or apprehensions through an information and communications network by repeatedly reaching another person.

From early November 2018 to December 17, 2018, the Defendant: (a) called “A” and “A” in the Defendant’s house located in Seongdong-gu Seoul, Seongdong-gu, to provide a settlement on the wrapping part after having gone to the Defendant’s home in Seongdong-gu, Seoul; (b) the Defendant used the Defendant’s cell phone (D) so that the Defendant could not receive a telephone; and (c) made the Defendant’s cell phone calls one day to the victim’s cell phone number (E); and (d) contacted the surrounding people by repeatedly reaching the victim’s victim by sending the text, such as “I wish to talk on SNS,” and Kakaox message.

3. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles

1) Whether or not to express the intention of not punishing the offender

The defendant's act of sending text and Kakao Stockholm messages to the victim does not seem to have expressed his/her intention to punish him/her. This part of the defense counsel's assertion is without merit.

2) Specific determination

Article 65(1)3 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 7142 of Jan. 29, 2004; hereinafter “Act”) provides that criminal punishment shall be imposed against persons who repeatedly sent words, sounds, letters, images, or videos that cause fear or apprehensions to the other party through an information and communications network. "If a person repeatedly leads to fear or apprehensions to the other party through an information and communications network, a person who repeatedly leads to fear or apprehensions to the other party" is interpreted as causing fear or apprehensions to the other party by exposing a sound repeatedly through an information and communications network. Therefore, even if a person repeatedly sent a telephone to the other party, the "Belgium of a telephone" cannot be said to have been transmitted to the other party through an information and communications network, it cannot be said that there is apprehension or apprehensions to the other party (see, e.g., Supreme Court Decision 2005Da165254, Feb. 25, 2005).

In this case, there is a question as to whether the defendant's communication to the surrounding people is causing fears to the other party. However, in the process of pursuing the right before and after the instant case, it is difficult to view that the defendant and the victim were in conflict with each other due to money issues, etc., and the situation where the defendant mentioned the means of civil lawsuit against the victim and required the repayment of money, the victim talked to the surrounding people about the defendant's act of the victim, and otherwise, it is difficult to recognize that the defendant thought that the defendant's behavior or violence was committed before and after the instant case in relation to the victim, and that the defendant used the victim's speech or communication network, and that the defendant's fear and communication contents were unlikely to reach fears or apprehensions, in light of the following: (a) whether the defendant sent the victim; and (b) whether the defendant used the victim's speech or communication in relation to the victim; and (c) whether there was apprehensions or apprehensions of the contents of the message or communication network; and (d) whether it caused fears or fears of the defendant.

In light of the language and structure of Article 74 (1) 3 and Article 44-7 (1) 3 of the current Information and Communications Network Act with respect to the Defendant’s repeated phoneing to the victim, the above legal principle is also applicable to the current Information and Communications Network Act. Therefore, it is difficult to determine that the Defendant’s act of making the victim’s phone calls to “the Defendant’s act of repeatedly delivering to the other party any sign, words, sound, image, or picture that arouses fear or apprehension.”

There is no other evidence to prove the facts charged. This part of the defendant's assertion is with merit.

4. Conclusion

If so, the defendant's appeal is with merit, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

【Grounds for the Judgment of the Supreme Court】

The summary of the facts charged in the instant case is as stated in 2.2, and this constitutes a case where there is no proof of a crime for the same reason as stated in 3.3, and thus, the Defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but the summary of the judgment is not publicly announced pursuant to the proviso

Judges Jeon Nam-nam

Judges Lee Jae-soo

Judges Hah For the purposes of taxation