(영문) 서울중앙지방법원 2005. 1. 21. 선고 2003노6401 판결

Defendant 1 is punished by a fine of KRW 5,00,00, by a fine of KRW 2,000,000, by a fine of KRW 2,000, by a fine of KRW 300,00, by a fine of KRW 500,00.

In the event that the Defendants did not pay the above fines, the Defendants shall be confined in each Labor House for the period of 50,000 won converted into one day.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

(1) Defendant 2, 3, and 4

In applying the public performance and obscenity under Article 245 of the Criminal Act, the concept of “obscenity” should be strictly interpreted as far as possible by clearly recognizing the difference and limit between “obscenity” and “low speed,” and the public performance in this case is planned to do so for the consortiumb, and it is the content of the nud model, and it can be seen as an obscene and indecent act in light of the sound social norms of our times even though it is difficult to regard it as an obscene act in light of the sound social norms of our times. Furthermore, even though there was no awareness that the above Defendants did not engage in obscene acts, the judgment of the court below convicting the above Defendants is erroneous in matters of mistake of facts and misapprehension of legal principles.

(2) Defendant 1

Defendant 1’s judgment of the court below which convicted the above Defendant on the ground that Defendant 1 did not fully recognize that the performance of this case, which was planned to promote his body and good (title omitted), was obscene. Thus, the judgment of the court below which convicted the above Defendant was erroneous in matters of law.

B. Unreasonable sentencing (Defendants)

Considering the various circumstances of the instant case, the sentence against the Defendants (the imprisonment of six months for the Defendants 1, the suspended sentence of one year for the Defendant 1, and the fine of five million won for the Defendants 3 and 4) is too unreasonable.

2. Determination

A. Judgment on misconception of facts and misapprehension of legal principles

(1) The term "obscenity act" 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. In determining the obscenity of performing act, it is necessary to examine the various points such as the degree and method of explicit and detailed description and writing with respect to the sex of the act in question, the degree of mitigation of sexual stimulation due to the ideas, etc. expressed in the act in question, the degree of composition or development of works, or artistic and ideologicality, etc., the degree of mitigation of sexual humiliation from their perspective, and whether the act in question can be recognized as an encouragement of sexual interest of the audience in light of the sound social norms of that time, and it is necessary to judge whether it is against the concept of sexual humiliation, such as the degree and method of sexual humiliation and writing, the proportion of the entire act in question, the relation between the ideas expressed in the act in question, etc., the composition and development of the work in question, and whether it is recognized as an incentive of the audience in question. 196Do19696.

(2) In full view of the evidence and the statement of Co-Defendant 1 at the first instance court that had been lawfully examined at the lower court’s 4th session of the instant case, Defendant 1, the head of the marketing team at the first instance court, who was a public relations agent of the first instance court, requested Co-Defendant 1 to publicize the products of the first instance court (name omitted), which was newly released at the Seoul milk, for the first instance court’s 0th session of the instant case’s 4th session of the first instance court, and the first instance court’s 0th session of the first instance court’s 0th session of the first instance court’s 2nd session of the first instance court’s motion for a public performance and the second instance court’s 5th session of the first instance court’s 1st session of this case’s 4th session of the first instance court. Co-defendant 1, the first instance court’s 2nd session of the first instance court’s order to open the first instance court’s 2nd session of the second instance court’s.

As can be seen by the above facts, ① the above Defendants’ act of spreading sexually secret to their body as well as their body, or string off their body at male sites, or string off the smugglings with the above Defendants’ body in a manner of spreading them, etc. Even if the above Defendants were to be seen to have been engaged in the act of spreading their body for a considerable amount of time before the above Defendants were exposed to the audience. Furthermore, even if the above Defendants were to have been engaged in the act of spreading their body for a considerable amount of time before the public performance, the above Defendants were to have been exposed to the public performance of this case, and the acts of spreading their body for a considerable amount of time during which they were to be seen to have been exposed to the public performance of this case. Furthermore, even if the above Defendants were to have been exposed to the public performance of this case, it appears that there is sufficient reason to view the above Defendants’ act of spreading out of their body, which is hard to be seen to have been done under the planning of the public performance of this case.

(3) Furthermore, as to whether the Defendants had awareness that the performance of this case was obscene, it should be objectively determined as to whether the performance of this case was obscene, and whether the above performance of this case was obscenity depends on the actor’s subjective intent. Thus, even if the above Defendants did not recognize the obscenity of the above conduct, they are aware that the above Defendants are openly engaged in the above conduct which is objectively recognized as obscene, and it is no longer necessary to recognize that the above conduct was obscene (see, e.g., Supreme Court Decisions 96Do980, Jun. 11, 1996; 70Do1879, Oct. 30, 1970; 200Do1879, Oct. 30, 200), and in light of the record, it can be sufficiently recognized that Defendant 2, 3, and 4 had public knowledge that the above conduct was objectively recognized as obscene prior to the exercise of the news article of this case, and Defendant 1 also had no objective reason to recognize that the above conduct was publicly known.

B. Determination on the assertion of unfair sentencing

In addition to the minor criminal records, Defendant 2 did not have any specific criminal records, and all the other Defendants were first offenders, since around 1979, Defendant 1 was working in good faith for about 25 years in Seoul U.S., and the crime of this case was committed while on duty as the marketing team leader. The personnel regulations of Seoul U.S. allow the employees to be subject to dismissal when they were sentenced to a suspended sentence of imprisonment without prison labor or heavier punishment. If the above Defendant was dismissed due to this case, it seems that it would be too harsh in light of the nature of the crime and criminal situation. The remaining Defendants were to perform the act of this case at the request of Co-Defendant 2 of the court of first instance, who planned the performance of this case as a nud model, planned the performance of this case, and planned the performance of the crime of this case, and there was no significant benefit from the crime of this case, and the degree of obscenity and the degree of the Defendants' participation in the crime of this case. Thus, the court below's appeal against each of the defendants is justified.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the appeal by the defendants pointing out unfair sentencing is based on all grounds.

Criminal facts and summary of evidence

In addition to the deletion of "each prosecutor's protocol against Nonindicted 3 and Nonindicted 4" in the summary of the evidence in the judgment of the court below, the defendants' criminal facts and the gist of the evidence recognized by this court are as shown in each corresponding column of the judgment of the court below. Thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.