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All appeals by the defendant and the prosecutor are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1) In relation to the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media), the video sent by the Defendant to the victim was not likely to cause a sense of sexual humiliation or aversion, and the Defendant did not have the intent to commit the crime.
Nevertheless, the judgment of the court below which convicted the defendant is erroneous in the misunderstanding of facts and misunderstanding of legal principles.
2) The punishment sentenced by the lower court (an amount of KRW 3 million, and an order to complete a sexual assault treatment program of KRW 40 million) is too unreasonable.
B. The above sentence imposed by the prosecutor by the court below on the defendant is too unhued and unfair.
2. Determination
A. In full view of the evidence duly adopted and examined by the court below and the following circumstances revealed by the witness E’s legal statement, video transmitted by the defendant to the victim constitutes dynamic video that causes sexual humiliation or aversion, and the defendant’s intent to commit the crime is sufficiently recognized.
Therefore, this part of the defendant's argument is without merit.
(1) Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) provides for the punishment of “a person who makes another person reach the other party with the words, sounds, letters, pictures, images, or other things that may cause a sense of sexual shame or aversion (hereinafter “the pictures, etc.”) by telephone, mail, computer, or other means of communication, with intent to arouse or satisfy his/her own or the other person’s sexual desire.”
The crime of obscenity using the communications media under Article 13 of the Sexual Violence Punishment Act is to guarantee “the right not to contact with pictures, etc. that cause sexual humiliation against the right to sexual self-determination, against the individual’s will,” and to protect sexual self-determination and general personal rights, and sound sexual morals of society.