Defendant

Defendant

Maximum master's (prosecution), Park Jae-young (public trial)

Attorney Park Sung-nam

Ulsan District Court Decision 2017Gohap194 Decided December 15, 2017

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

To order the defendant to complete a sexual assault treatment program for 80 hours.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, Distribution, etc. of obscenity)

The Defendant only received the video files of the victim’s act of self-defense with the consent of the victim and did not store or spread them on a mobile phone. Nevertheless, the lower court erred by misapprehending the legal doctrine that the Defendant’s act constitutes “production of child or juvenile pornography” under Article 11(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, thereby adversely affecting the conclusion of the judgment.

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

Since the defendant did not transmit obscene videos and photographs to the victim against the victim's will, the defendant's act does not constitute punishment under Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. Nevertheless, the judgment of the court below that found the defendant guilty of this part of the facts charged is erroneous, which affected the conclusion

B. Unreasonable sentencing

The punishment sentenced by the court below (the disclosure and notification of registered information for three years of imprisonment, 80 hours of completion of sexual assault treatment programs, and 5 years) is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. Whether the act of causing the victim to photograph and transmit obscene videos constitutes “production” of child and juvenile pornography

1) The lower court determined that: (a) the Act on the Protection of Children and Juveniles against Sexual Abuse does not provide for the definition of “production” of child and juvenile pornography; (b) the meaning of “production” in the Copyright Act provides that “production shall be, without any restriction on the method or purpose of production; (c) simple digital images recorded at the present technological level can easily create available obscene materials immediately; (d) barring any special circumstance, it shall be deemed that the production of obscene materials was completed at the time of entry of smartphone’s cellphone’s cell phone’s key storage device in the form of file; and (e) the production of obscene materials on the Internet and other media does not constitute “production” under the name of “10 children and juveniles against sexual traffic” or “10 children and juveniles against sexual traffic” (see, e.g., Supreme Court Decision 200Du150100, Sept. 15, 201).

2) In full view of the circumstances revealed by the lower court and the evidence duly adopted and examined by the lower court, the production of child and juvenile pornography has already been completed when the Defendant instructed the victim to take a face of committing a self-defense act, and the victim taken a face of obscene act by a camera, etc. attached to his/her cell phone and then entered the victim into the cell phone cycle suppression unit. Therefore, even if the Defendant did not store or distribute the video files taken by the victim, it does not affect the establishment of the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (production, Distribution, etc. of obscenity). Therefore, the Defendant’s aforementioned assertion of legal principles is without merit.

B. Whether the Defendant’s transmission of obscene videos and photographs to the victim is against the victim’s will

The Defendant also argued to the effect as alleged in the above mistake of facts, and rejected the above assertion by the lower court in detail. The lower court, which duly adopted and examined the reasoning of the judgment, rejected the above argument. The lower court determined that: (a) the Defendant was a male student of 24 years old; (b) while the Defendant was a female high school student of 18 years old, the victim was unaware of the facts before the instant case; and (c) the Defendant knew that the victim needs to receive money from the victim by the next day; (c) the victim sent money to the victim with obscene video and photo files; (d) the victim requested the victim to transfer money several times in the middle of demanding the victim’s obscene video and photo; (d) the victim’s video and photo were unable to immediately send money to the victim; and (d) the Defendant was unable to send money to the victim; and (d) the victim did not appear to have expressed any unlawful and unreasonable attitude of the Defendant’s consent to open to the victim’s obscenity, as he did not appear to have complied with the victim’s sexual obscenity and sexual obscenity.

3. Judgment on the assertion of unfair sentencing

Each of the crimes of this case committed by the Defendant, upon approaching the victim who is female juvenile, allowed the Defendant to photograph obscene videos, etc., and transmitted them to the victim with obscene pictures, etc. for the purpose of sexual satisfaction, and forced the victim to photograph and transmit the obscenity images of the female student, but the victim refused to do so.

Considering the fact that the Act on the Punishment, etc. of Sexual Crimes was very bad, that the Defendant would have suffered sexual humiliation during the course of committing the instant crime, that the Defendant attempted to have his/her sexual desire by inducing the victim, who is an elementary school student, to have his/her sexual intercourse, and that the Defendant committed each of the instant crimes even though he/she had been under suspension of execution, even though he/she had committed a crime of coercion by a similar veterinary method in around 2013, violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media) and violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (obscenity possession), and that the Defendant did not seem to seriously reflect the judgment of the court, it is necessary to strictly punish the Defendant.

However, the Defendant is still young and has no record of criminal punishment other than the above suspended sentence, and the Defendant did not block the Defendant’s direct contact with the victim’s body or spread video images, etc. transmitted by the victim’s body, and the crime of coercion also committed an attempted crime. The Defendant paid the victim KRW 20 million to the victim and agreed that the victim does not want the Defendant’s punishment, and the social relation is relatively clear, such as the Defendant’s family and branch members want the Defendant’s wife, and the Defendant’s age, character and behavior, environment, motive, means and consequence of the crime, and the circumstances after the crime, etc., as a whole, it is determined that the sentence imposed on the Defendants is somewhat inappropriate.

4. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it shall be ruled as follows.

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

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

Article 11(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the production of child and juvenile pornography, including, but not limited to, the selection of limited imprisonment), Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the use of telecommunications media, including, but not limited to, the use of obscenity), Article 324-5 and Article 324(1) of the Criminal Act (the attempted charge of coercion, the choice of imprisonment

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (within the scope of adding up the long-term punishments of each of the above crimes) shall be concurrent crimes with the punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse (production, Distribution, etc. of obscenity)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (In the preceding case, favorable circumstances are considered in determining the assertion of unfair sentencing)

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

In full view of Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the fact that the Defendant has yet to be young, the Defendant’s distorted sexual impulse appears to have been mitigated or pedced by completing convicts and sexual assault treatment programs, and other various circumstances such as the Defendant’s age, occupation, family environment and social relationship, the details, circumstances, and result of the instant crime, the details, and consequence of the instant crime, the prevention of sexual crimes subject to registration that may be achieved by the disclosure or notification order, the effect of the protection of the victims of sexual crimes subject to registration, and the degree of disadvantage and anticipated side effects of the Defendant’s entry due to the disclosure or notification order, it is deemed that there

The sentence shall be determined as per the Disposition on the grounds as examined earlier in the judgment on the assertion of unfair sentencing.

Where the conviction of a person subject to registration is finalized with respect to a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) and a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media), the accused is a person subject to registration of personal information under Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus the accused is obligated to submit personal information

Judges Kim Jong-sik (Presiding Judge)