2016 Highest 5719 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media)

A

Park Hyun-ju (Court of Prosecution) and Professor-young (Court of Public Trial)

Attorney B (Korean National Assembly)

December 21, 2016

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

To order the defendant to complete a sexual assault treatment program for 24 hours.

In order to order the provisional payment of an amount equivalent to the above fine.

Criminal facts

On May 29, 2016, at around 22:30, the Defendant sent to the victim a letter that causes a sense of sexual shame through a telecommunication medium for the purpose of meeting his/her sexual desire, while the Defendant used the game by five teams, including the victim E (21 years of age, in connection with the computer in the Busan East-gu C, and became a victim E (the victim E).

Summary of Evidence

1. Defendant's legal statement;

1. Police suspect interrogation protocol of the accused;

1. Statement to E by the police;

1. A written petition;

1. Photographs photographs and investigation reports (suspects and telephones);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order to complete programs;

Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

The defendant and his defense counsel argued that the defendant sent the victim through the above writing, but at the time, the defendant did not send such text messages with the purpose of inducing or meeting his sexual desire, so it does not constitute a violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the crime of obscenity using communications media).

The crime of obscenity using a telecommunications media under the Act on the Punishment, etc. of Sexual Crimes constitutes an objective crime established when a person reaches another person by telephone, etc. for the purpose of inducing or meeting his/her own or another person's sexual desire. Whether the aforementioned objective was established shall be determined reasonably in light of social norms by taking into account various circumstances, including the offender's age, occupation, and other individual elements, motive and circumstance of the crime, method and method of the crime, details and manner of the act, personal relationship with the victim, and circumstances before and after the crime.

In this case, the following circumstances, which can be seen by comprehensively taking account of the evidence as indicated in the judgment, include ① the Defendant’s sexual desire against the victim, as well as the Defendant’s expression of reflection on the rejection of the Defendant’s game from the victim’s game. As such, the Defendant’s assertion of the Defendant and the defense counsel is not accepted. However, the Defendant and the defense counsel were aware of the fact that the Defendant was young female. ② In light of the fact that the Defendant was aware of the fact that the Defendant was a young female, ② the fact that the Defendant’s sexual organ, sexual intercourse, etc. includes a selmatic expression, and other circumstances after sending the text, etc., the reason why the Defendant sent it to the victim can be acknowledged that the Defendant included the Defendant’s sexual desire against the victim as well as the Defendant’s sexual desire.

Judges Mak-hee