[1] The meaning of "obscenity" in the crime of obscenity under Article 245 of the Criminal Code, and whether such an act necessarily requires to describe a sexual act or display a sexual intent (negative)

[2] The standard for determining whether the act of exposing a major part of the body, such as a sexual flag or her m, constitutes a category of minor crime under Article 3(1)3 of the Punishment of Minor Offenses Act or a category of “obscenity” under Article 245 of the Criminal Act

[3] Criteria to determine the relativeness, liquidity, and abstractity of the concept of "obscenity" and the obscenity of the act

[1] The term “obscenity” in the crime of obscenity under Article 245 of the Criminal Code refers to an act contrary to the concept of sexual intent by inducing sexual interest and impairing normal sexual humiliation by stimulating ordinary people’s sexual desire, and it does not necessarily require the act to describe a sexual act or display a sexual intent.

[2] In light of the fact that Article 3(1)3 of the Punishment of Minor Offenses Act provides that "a person who embarrasses or disturbs other persons by exposing a major part of the body, such as sexual or malt, at an open place" shall be punished. In a case where an act of exposing a major part of the body, such as sexual or malt, was committed, in light of specific circumstances such as the date and time, place, exposure part, exposure method and degree, exposure motive and circumstance, etc., if it is merely a mere degree of embarrasing or dishing other persons, it shall be deemed that it falls under Article 3(1)33 of the Punishment of Minor Offenses Act, but if it causes sexual humiliation and sense of sexual shame by stimulating the general public, it may be deemed that it constitutes "obscenity" under Article 245 of the Criminal Act.

[3] The concept of “obscenity” itself is relative and flexible that changes according to the changing society and the times. Since it is abstract that has a close relationship with social morals, ethics, religion, etc. in that era, it is ultimately an objective and normative evaluation according to sound social norms by observing the overall content from the perspective of the average person rather than the actor’s subjective intent.

[1] Article 245 of the Criminal Code / [2] Article 245 of the Criminal Code, Article 3 (1) 33 of the Punishment of Minor Offenses Act / [3] Article 245 of the Criminal Code

[1] Supreme Court Decision 2005Do1264 Decided January 13, 2006 (Gong2006Sang, 279) / [2] Supreme Court Decision 2003Do6514 Decided March 12, 2004 (Gong2004Sang, 673) / [3] Supreme Court Decision 94Do2266 Decided February 10, 1995 (Gong195Sang, 1367) Supreme Court Decision 201Do16580 Decided October 25, 2012

Defendant

Prosecutor

Suwon District Court Decision 2018No2872 decided September 5, 2019

The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.

The grounds of appeal are examined.

1. The term “obscenity” in the crime of obscenity under Article 245 of the Criminal Act refers to an act contrary to the concept of sexual morality by stimulating ordinary people’s sexual desire and impairing normal sexual humiliation by stimulating them, and such an act does not necessarily require the expression of sexual intercourse or expression of sexual intent (see Supreme Court Decision 2005Do1264, Jan. 13, 2006, etc.).

In addition, Article 3(1)3 of the Punishment of Minor Offenses Act provides that "a person who embarrasses or disturbs other persons by openly exposing his/her body, such as his/her sex or her butt, at an open place, shall be punished." In light of the specific circumstances, such as the date and place of exposure, exposure, exposure method, exposure motive and circumstance, etc. in cases where the act was committed by exposing a major part of the body, such as sexual or her sex or her butt, etc., if it is merely a mere degree of embarrasing another person’s humiliation or aversion, it is merely applicable to Article 3(1)33 of the Punishment of Minor Offenses Act, but if it causes sexual humiliation not only such degree but also causes sexual humiliation but also causes a normal sense of sexual humiliation, it can be deemed an "obscenity act" under Article 245 of the Criminal Act (see Supreme Court Decision 203Do6136, Mar. 12, 2004).

Meanwhile, the concept of “obscenity” itself is relative and flexible that changes according to changes in society and the times. Since it is abstract in that era that has close relations with social morals, ethics, religion, etc., it is ultimately necessary to observe the overall contents from the perspective of the average person, not from the actor’s subjective intent, and to evaluate them objectively and objectively according to sound social norms (see, e.g., Supreme Court Decisions 94Do2266, Feb. 10, 1995; 201Do16580, Oct. 25, 2012).

2. The evidence duly admitted by the court below reveals the following facts.

A. On October 9, 2017, the Defendant: (a) 20:26 on October 2017, 201, sent back panty and panty in front of the wartime participation as indicated in the facts charged of this case; (b) was viewed as the wartime participation; and (c) was walking back to one direction of the wartime participation; and (d) was exposed in front of or around the wartime participation.

B. There are various attitudes, such as the body of the people in the war, seated with being known or exposed, attitude, etc., and the body of the people in the war, as well as the body of the people, or with those of those who live in a fluoral body or with a fluoral body of a fluor. From the fluoral surface, it is expressed that the length of the fluoring and men are many inside and outside of 20 persons, and that the fluoral, fluor, tur, etc. are considerably humd and humd.

C. At the time of the instant case, even though at night, the said War Veterans did not go ahead due to the surrounding lighting, and many people passed.

D. During the process of marining, the Nonindicted Party: (a) observed the appearance that the Defendant was exposed to her gender and her butt, and verified it; and (b) viewed that another female four and her child passed, the Nonindicted Party reported the Defendant to the police.

E. According to the report of the Nonindicted Party, the Defendant continued to be exposed to the police officer’s sexual intercourse and her tamp around the time when the police officer arrived at the site.

3. Examining the foregoing factual basis in light of the legal principles as seen earlier, in light of the following, the Defendant’s act of exposing a sexual flag and her butt will as seen in the instant facts charged by comprehensively taking into account the specific circumstances, such as the time and place of the act, exposure level, method, degree, time, exposure circumstance, etc., the act constitutes a openly obscene act even if the act does not describe a sexual act or display a sexual intent. Specific reasons are as follows.

A. Since many people, including women and children, are passing through the Defendant’s wife at the time of the instant case and did not go around, they could easily find out the Defendant’s act, clothes, shapes, etc.. The Defendant could sufficiently recognize that many people pass through the Defendant’s surroundings.

B. Nevertheless, the Defendant, at the time, her panty and panty was exposed to her mar and her mar, and did not make efforts to her mar and mar before being exposed, and continued the exposure for a considerable period of time.

C. There were many figures who expressed al body, etc. in the wartime reserve in which the defendant viewed it as being exposed or read around it.

D. At that time, a number of visitors, including four other women passing through the same place, could have sufficiently seen that the Defendant, while revealing her gender and her mar, view the participation in the war in which the her mar is a part of his mar, or the surrounding area of his mar, etc. The Defendant’s act of continuously exposing her gender and mar on the background of the above mar mar, may sufficiently be selected, and may cause a sense of sexual humiliation or shame of the general public.

E. Ultimately, if the Defendant’s above act is objectively and objectively evaluated according to sound social norms by observing the overall content from the standpoint of the average person, it can be deemed not merely to have made others feel sexual humiliation or displeasure, but to constitute an act contrary to the concept of sexual morality by stimulating ordinary people’s sexual desire by stimulating sexual humiliation and impairing normal sexual humiliation.

4. Nevertheless, the lower court acquitted the Defendant of the instant facts charged, on the grounds that the “obscenity” in the crime of obscenity means only a sexual act, or that the Defendant’s act does not constitute a degree of causing sexual humiliation by stimulating the sexual desire of ordinary people.

In so doing, the lower court erred by misapprehending the legal doctrine on “obscenity” in the crime of obscenity, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

5. 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 Kwon Soon-il (Presiding Justice)