(영문) 대전지방법원 2016.6.20.선고 2016고합120 판결

On June 24, 2015, the Defendant: (a) called the victim’s cell phone to verify the fact by suspicion that he was the victim D and the party interested in internal affairs; (b) the victim was not the victim’s cell phone; (c) on June 24, 2015: (d) around 56, the Defendant sent the victim’s cell phone with the victim’s cell phone, “On June 24, 2015, the Defendant sent the victim’s cell phone with the “not having contact,” and (d) from that time, the Defendant sent the text message using the same method over 13 times in total as indicated in the list of crimes in the attached Form: 15, thereby allowing the victim to repeatedly reach the victim.

2. Determination;

A. Articles 74(1)3 and 44-7(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. are subject to punishment for repeated arrival to other parties of any codes, text, and language, sound, image, or motion picture that arouses fear or apprehension through an information and communications network. Whether such an act constitutes “the act of having other party reach other party repeatedly” ought to be determined by comprehensively taking into account the content of the language and text sent by the Defendant to the other party, the method and method of expression, the relationship between the Defendant and the other party, the details of sending the text, the number of times of sending the text, the circumstances before and after, and the situation of the other party’s occurrence (see Supreme Court Decision 2013Do761, Dec. 12, 2013).

B. In light of the following circumstances acknowledged through each evidence duly adopted and investigated in this Court, it is difficult to view that the evidence submitted by the prosecutor alone leads the Defendant to repeatedly deliver text messages causing fears or apprehensions on the victim’s mobile phone to the other party to the extent that there is no reasonable doubt, and there is no other evidence to acknowledge it otherwise.

1) On June 24, 2015, in order to verify whether the Defendant’s wife and the victim’s wife were in an internal relationship, around 10:40 on June 24, 2015, the Defendant her phone calls to the victim, and the victim her phone calls to the Defendant to leave from the Defendant, and then cut off the phone upon the victim’s call to the effect that “I would leave from the Defendant.” The Defendant then called the victim to the effect that I would not have contact with the victim, but rather called the victim to send text messages identical to the facts charged.

2) Examining the content of text messages sent by the Defendant, the text messages include some text messages that could feel difficult for the victim, such as “I am and I am and I am and I am and I am.” However, most text messages themselves cannot be seen as creating fears or apprehensions, and some text messages are used as a somewhat excessive expression, but they merely display anger without their own appraisal in a situation where the Defendant does not contact with the victim.

Ultimately, the defendant's consistently demanding the victim through text messages to contact himself/herself, and the victim's contact had already been said to be the victim in the front line telephone system.

3) On June 25, 2015: around 04:15, the victim sent a text message to the Defendant “Around 04:31 on the same day after receiving the text message from the Defendant “On the same day, the Defendant had the phone machine installed at the phone and confirmed the phone and the text message at present. First of all, the Defendant sent the message to the effect that the Defendant was sent a crime. It is not absolute between C and C. At the end of the second time, the victim sent a text message to the effect that “I want to actively explain the suspicion that the Defendant was holding.” According to the above contents, the victim sent a text message to the effect that “I want to actively explain the suspicion that the Defendant was holding, and does not seem to have caused fear or apprehension by sending the text message to the Defendant.”

3. Conclusion

Therefore, the facts charged in the instant case constitute a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act

Jurors's verdict

1. A verdict of guilt or innocence;

○ Defendant : Four persons

○ Not guilty: Three persons;

2. Grounds for sentencing a judgment different from the jury's verdict;

The jury convicted him of the facts charged in the instant case by majority. However, as seen earlier, it is difficult to deem that the evidence submitted by the prosecutor alone alone proves that the Defendant repeatedly delivered text messages causing fears to the victim’s mobile phone to the other party, and there is no other evidence to acknowledge this differently, and thus, the Defendant not guilty of the facts charged in the instant case, contrary to the jury’s verdict, is not guilty.

For more than one reason, this case against the defendant is judged as ordered through a participatory trial according to his wishes.