In a case where the Defendant was indicted for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Distribution of obscenity) on the part of distributing or openly displaying obscene videos through an information and communications network by posting a siren file on a bulletin board with respect to a large number of obscene videos, such as sexual intercourse videos between men and women, and allowing many unspecified persons visiting the above website to download it, while operating the Internet website with a server in a foreign country, the case holding that the Defendant guilty against the Defendant.

The Defendant was prosecuted for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (PP) on the ground that, while operating an Internet website with a server in a foreign country, a large number of unspecified persons visiting the website by posting a siren file on a total of 8,402 obscene videos, such as sexual intercourse videos between men and women, and allowing them to download it, thereby distributing or openly displaying obscene videos through an information and communications network.

The case finding the Defendant guilty on the ground that, although the Defendant posted a siren file, which is a kind of data file in which the sharing information of a video file is stored, and did not distribute or openly exhibit obscene videos themselves, the Defendant’s act of providing a given file on an Internet site that can be used by an unspecified number of people, can be deemed as the same as directly displaying obscene videos, by practically controlling and using a given file, which is already in a state recognizable by an unspecified number of people, as the method of providing a given file, and thus, it can be deemed that the act of directly displaying obscene videos is identical to the act of directly displaying obscene videos, if an unspecified number of people actually created a situation in which obscene videos can be directly connected with obscene videos without any restriction by using the said file, such act meets the elements of the crime of openly distributing or openly displaying obscene videos, deeming it as a whole.

Articles 44-7 (1) 1 and 74 (1) 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Defendant

Defendant

Maximum Hoho et al.

Attorney Kim Min-soo

Jeonju District Court Decision 2018 Godan1956 decided January 25, 2019

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

It is only posted a Saturday file which is a kind of data file in which the sharing information of a video file is stored, and it is not distributed or openly displayed obscene images themselves.

B. Unreasonable sentencing

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

2. Determination

A. Judgment on the misapprehension of legal principles

The Defendant also asserted the same purport in the lower court, and rejected the lower court’s determination in detail. As indicated in its reasoning, the act of providing a siren file with respect to obscene images on the Internet site on which many and unspecified persons may use it may be deemed as having the same effect as directly displaying obscene images in substance by de facto controlling and using an obscene video file, which is in a state recognizable by many and unspecified persons, as a means to provide a given file. If multiple unspecified persons, without any particular restriction, actually creating a situation in which a group of unspecified persons are able to access obscene images by using the said file, it is reasonable to deem that such act meets the elements for establishing a crime of distributing or openly displaying obscene images by viewing it as a whole.

B. Determination on the assertion of unfair sentencing

Based on the statutory penalty, the sentencing is a discretionary judgment that takes place within a reasonable and appropriate scope, taking into account the factors that are the conditions for sentencing prescribed in Article 51 of the Criminal Act, and in addition, in light of the ex post facto nature of the appellate court, etc., it is reasonable to respect the sentencing of the first instance court where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion. Although the first instance court’s sentence falls within the reasonable scope of discretion, it is desirable to reverse the judgment of the first instance court and to refrain from imposing a sentence that does not differ from the first instance court solely on the ground that it is somewhat different from the appellate court’s opinion (Supreme Court en banc Decision 2015Do3260 Decided July 2

Considering the fact that there is no change in the conditions of sentencing in comparison with the trial court and the trial court, and the sentencing of the court below is not deemed to deviate from the reasonable scope of discretion, and other circumstances that form the conditions of sentencing as shown in the records and arguments of this case, such as the defendant's age, character and conduct, environment, circumstances and result of the crime, etc., it cannot be deemed that the sentence of the court below is too unreasonable. Accordingly, the defendant's above assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Go Jong-hwan (Presiding Judge)