The meaning of “distribution” and “providing” under Article 14(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, and whether granting free of charge to a specific one or a minority person without intent to distribute it constitutes “providing” (affirmative)

Article 14(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that a person who distributes, sells, leases, provides, or openly displays or shows any photographic material against his/her will, even if the photographic material taken by a third person, which may cause sexual humiliation or shame, does not go against the will of the person subject to filming at the time of photographing, shall be punished.

Here, “distribution” refers to granting free of charge to many and unspecified persons, and if a person has an intention to distribute to many and unspecified persons by continuously and repeatedly transmitting it, delivery to a certain number of persons or to a small number of persons may also constitute distribution.

Meanwhile, “providing” enumerated separately from “distribution” refers to offering free of charge that does not reach the “distribution”, and offering free of charge to a specific person or minority without intent to “distribution” constitutes “providing.”

Article 14(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Defendant

Defendant

Attorneys Jeong Ho-ho et al.

Gwangju District Court Decision 2016No2044 Decided October 5, 2016

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. As to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) (hereinafter “Assault Punishment Act”).

A. Article 14(2) of the Sexual Violence Punishment Act provides that a person who distributes, sells, leases, provides, or openly displays or shows, photographs against his/her will, even if the photographs taken by another person’s body, which may cause sexual humiliation or shame, using a camera or other similar mechanism, do not go against the will of the person subject to filming at the time of taking the pictures.

Here, “distribution” refers to granting free of charge to many and unspecified persons, and if a person has an intention to distribute to many and unspecified persons by continuously and repeatedly transmitting it, delivery to a certain number of persons or to a small number of persons may also constitute distribution.

Meanwhile, “providing” enumerated separately from “distribution” refers to offering free of charge that does not reach the “distribution”, and offering free of charge to a specific person or minority without intent to “distribution” constitutes “providing.”

B. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

(1) Around January 2015, the Defendant, with the consent of the victim, taken a sexually related dynamic image, brhographic photo, etc. with the victim as his/her cell phone with the victim’s blood relationship.

(2) On November 27, 2015, the Defendant heard the victim who returned home at night with the Nonindicted Party, and disputed with the victim. On the following day, the Defendant sent part of the video and b body pictures (hereinafter “the instant filming”) to the Nonindicted Party’s cell phone with the Defendant’s female and the Defendant’s speech that he would not meet the victim.

(3) From 2013 to 2013, the Nonindicted Party had been aware of the relationship with the Defendant before receiving the instant photographic material from the victim with respect to the relationship with the Defendant, and the Defendant was aware of the relationship with the Nonindicted Party after commencing the teaching process with the victim.

(4) The Nonindicted Party immediately deleted the instant photographic material after being transmitted.

C. Examining the above facts in light of the legal principles as seen earlier, the Defendant appears to have transmitted the instant photographic material to the Nonindicted Party with the intent to prevent the victim any longer when the Nonindicted Party clearly inform the Nonindicted Party of the relationship between the Defendant and the victim with the Nonindicted Party by knowing that the victim had reconcepted the Nonindicted Party again, and it is difficult to view that the Defendant sent the instant photographic material to the Nonindicted Party with the intent to deliver or deliver it to an unspecified

Therefore, the Defendant’s act does not constitute a “distribution” of photographs, even if the act constitutes “providing” photographs as provided by Article 14(2) of the Sexual Violence Punishment Act.

D. Nevertheless, the lower court found the Defendant guilty of this part of the facts charged on the ground that the Defendant’s act constituted “distribution” of photographs under Article 14(2) of the Sexual Violence Punishment Act.

In so determining, the lower court erred by misapprehending the legal doctrine on “distribution” of photographs under Article 14(2) of the Sexual Violence Punishment Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the crime of intrusion upon residence

Criminal facts have to be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the selection of evidence and probative value of evidence conducted on the premise of fact finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

For the reasons indicated in its holding, the lower court determined that the Defendant’s act of avoiding disturbance on the victim’s front corridor constitutes a crime of intrusion upon residence as it goes against the victim’s explicit or presumed intent, and that the Defendant’s intentional act is also recognized, and that such an act goes against the social norms, and rejected the allegation in the grounds of appeal for misconception of facts and misapprehension of legal principles.

The allegation in the grounds of appeal is purporting to dispute the fact-finding that led to the judgment of the court of fact-finding, and is merely an error of the judgment of the court of fact-finding as to the selection of evidence and probative value which belong to the free judgment of the court of fact-finding. In addition, even if examining the reasoning of the judgment below in light of the aforementioned legal principles, the relevant legal principles as stated in the judgment of the court below, and the evidence duly admitted, the judgment of the court below is not erroneous in the misapprehension of legal principles as to the legal principles as to the legal interest

3. Scope of reversal

Of the judgment below, the part of the judgment of the court below that violated the Sexual Violence Punishment Act (Kameras use photographing) should be reversed, and the court below rendered a single punishment on the ground that the above part and the remaining part found guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, etc., the judgment of the court

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)