2015No619

(a) Violation of the Act on the Punishment of Acts of Arranging Sexual Traffic;

(b) Violation of the Punishment of Arrangement of Commercial Sex Acts, etc. Act;

(c) Violation of Act on Promotion of Information and Communications Network Utilization and Information Protection;

1. A. (c) A;

2. A.B. B

Defendants

Park Jin-si (Court of Prosecution) and Kim Jin-young (Court of Public Trial)

Law Firm member, Attorneys Yoon Jae-il (for the defendant)

Daejeon District Court Decision 2014Da2645-1 (Separation) Decided February 5, 2015

May 15, 2015

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment for one year.

However, for two years from the date of the conclusion of the judgment, the execution of each of the above punishment against the Defendants is suspended. To order the Defendants to provide community service for 160 hours each.

The evidence of seizure Nos. 3, 5 through 12, 40, 41 shall be confiscated from A and from B of the defendant, respectively.

503,100,608 won shall be collected from each of the Defendants.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles (Article 2 of the Facts of crime)

Although the defendants made and operated the Internet bulletin board, the users of the site posted the relevant pictures, and the defendants did not directly posted them, they cannot be viewed as a principal offender for the crime of violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection (obscenity).

B. Unreasonable sentencing

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

2. Determination

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

1) Article 74(1)2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. provides that a person who distributes, sells, leases, or openly displays obscene codes, words, sound, images, or motion pictures through an information and communications network shall be punished. This Act was prepared to prevent harm of obscene materials caused by the wide construction of the super-high speed information and communications network and the facilitation of the use thereof. Here, “patent exhibition” means that an unspecified or multiple persons may actually recognize obscene codes, words, sound, or motion pictures (see Supreme Court Decisions 2008Do10914, May 14, 2009; 2007Do8286, Feb. 1, 2008).

2) 피고인들의 주장에 의하더라도 피고인들은 자신들이 운영하는 사이트에 '은꼴갤 러리'라는 게시판을 만들어 이용자들로 하여금 사진 등을 게시하게 하였는바, 위 게시판이 음란한 영상 내지 사진을 게시하는 용도로 개설되었고, 실제로 이용자들이 위 게시판을 통해 음란한 사진을 접할 수 있는 상태가 조성되었으므로, 피고인들이 사이트 활성화 등의 목적을 위하여 묵시적으로 이용자들로 하여금 위와 같은 사진을 게시하게하거나 이를 유도한 것으로 보기 충분하고, 피고인들의 행위는 전체로 보아 음란한 영상을 공연히 전시한다는 구성요건을 충족하였다고 봄이 상당하다(대법원 2008. 9. 25. 선고 2008도6562 판결 참조). 따라서 원심의 판단은 정당하고, 달리 사실오인 내지 법리오해로 판결에 영향을 미친 위법이 없다.

B. Regarding the assertion of unfair sentencing

1) Although the Defendants had been punished for the same crime, it is necessary to strictly punish the Defendants in light of the size of business, operating period, and the size of profit gained therefrom while opening and operating an Internet site through using illegal means to advertise sexual traffic business establishments.

2) Meanwhile, there are extenuating circumstances, such as the fact that both the Defendants were not guilty of a sentence, and the fact of the crime is recognized, and the Defendant A and two children are divided, the Defendant A and the wife support the children born on the side and the wife B, and the family members support the Defendants’ leading. In addition, in full view of all the sentencing conditions, including the Defendants’ age, living environment, motive, means and consequence of the crime, and circumstances after the crime, the sentence of the lower court is too unreasonable.

3. Conclusion

Since the Defendants’ appeal is well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, the part of the judgment of the court below against the Defendants is reversed and it is decided as follows.

Criminal facts and summary of evidence

Since each corresponding column of the judgment below is the same as that of the judgment below, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant legal principles concerning facts constituting an offense (defendants);

Article 20(1)2 of the Act on the Punishment of Acts of Arranging Sexual Traffic, Article 30 of the Criminal Act, Article 19(2)1 of the Act on the Punishment of Acts of Arranging Sexual Traffic, Article 30 of the Act on the Punishment of Acts of Arranging Sexual Traffic, Articles 30 and 32(1)2 of the Criminal Act (generally, the act of arranging sexual traffic), Articles 74(1)2 and 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., Article 30 of the Criminal Act (generally, the act of arranging sexual traffic)

1. Formal concurrence (the defendants);

Articles 40 and 50 of the Criminal Act (the punishment provided for in the Act on the Punishment of Acts of Arranging Sexual Traffic) and the punishment for aiding and abetting a violation of the Act on the Punishment of Acts of Arranging Sexual Traffic, and the punishment provided for in the Act on the Punishment of Acts of Arranging Sexual Traffic, which are more severe punishment)

1. Selection of punishment (the defendants);

Each Imprisonment Selection

1. Reduction of a punishment (the defendants);

Articles 32 (2) and 55 (1) 3 of the Criminal Act / [Violation of the Act on the Punishment of Acts of Arranging Sexual Traffic]

1. Aggravation for concurrent crimes (the defendants);

The punishment provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall be aggravated to the extent that the punishment for concurrent crimes is aggregated with the long-term punishment for the crime of aiding and abetting sexual traffic, which is heavier than the punishment provided for in the former part of Article 37, Article

1. Suspension of execution (the defendants);

Article 62 (1) of each Criminal Code (Consideration into Consideration of the favorable circumstances above)

1. A community service order (defendants);

Article 62-2 (1) of the Criminal Act, Article 59 of the Act on Probation, etc.

1. Confiscation (Defendants)

Article 48(1) of the Criminal Act, Article 25 of the Punishment of Acts of Arranging Sexual Traffic Act

1. Collection of additional dues (the defendants);

Article 25 of the Act on the Punishment of Acts of Arranging Sexual Traffic

The presiding judge, judge and assistant judge;

Judges Yang Ho-young

Judges Secretary-General;