(영문) 서울고등법원 2020.1.10. 선고 2019노1651 판결

A. misunderstanding of facts or misunderstanding of legal principles [Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (the part concerning possession of obscene materials]

The Defendant’s act does not constitute an element of a crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (obscenity possession) on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “obscenity possession”). Even if the elements of the crime are recognized, the possession of obscene materials constitutes an act of influence, such as production and distribution of obscene materials, or an act of influence. Nevertheless, the lower court found the Defendant guilty of the charges of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “obscenity possession”), other than a crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (production and Distribution of obscenity).

B. Unreasonable sentencing

The punishment sentenced by the court below (two years and six months of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles

1) Whether it constitutes an element of a crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (obscenity)

A) “Possession of obscene materials for children and juveniles as prescribed by the Act on the Protection of Children and Juveniles against Sexual Abuse” refers to a “act of keeping obscene materials for children and juveniles under de facto possession or control.” However, it can be deemed that the actor, if he/she is in a state that he/she can access and distribute obscene materials for children and juveniles, and is able to control them effectively.

B) According to the evidence duly admitted and examined by the lower court and the lower court, the following facts are revealed.

① The Defendant, at the time of the first investigation into the police with regard to the production, etc. of the instant videos, proposed the police officer in charge to voluntarily submit his/her mobile phone at the time of the second investigation into the police. However, the Defendant’s mobile phone was lost before the second investigation into the police and did not submit it. As such, the Defendant’s mobile phone was not secured as evidence.

② On November 19, 2018, the Defendant, upon undergoing the first investigation by the police, stated that “D 1:1 and open hosting the conversation with the victim, caused the victim to photograph and transmit the video of this case.” On the other hand, the Defendant sent the video of this case to the victim for viewing the transmission of the video of this case from the victim and was unable to do so.” On November 1, 2018, the second investigation and prosecutorial investigation conducted on the police 26th investigation, “The Defendant was unable to receive the video of this case on the date it was transmitted, or it was impossible to say that it was difficult to say that the video of this case was sent on the next day.”

③ As a result of the fact-finding with J, when a video was transmitted through a DNA conversation, J sent the video to the user for viewing by reproducing it, the said video shall be stored in the user’s cell phone flusium. In such cases, the user may continuously see the video or store it in the device, unless the user 's 's clusiuming’ or 's clusiuming media files’ is re- installed (including clus/re restoration) after deletion of the Stockholm. For the purpose of protecting the privacy of the user, the video may be stored in the DNA server only for a certain period, and the file that the user would not receive or want to keep shall be stored separately in the device.'

C) In light of the aforementioned legal principles, as long as the Defendant viewed the instant video from the victim’s cell phone to view it by using the DNA display system of his own mobile phone, the Defendant can be deemed to have possessed the instant video, which is a child or juvenile pornography, in the form of storing the instant video in DNA directorship inside the mobile phone. In addition, since the Defendant does not demand a specific period of storage in the concept of the said “bearing”, it is difficult to view that even if the Defendant viewed the instant video and deleted on the day or the following day after viewing it as alleged in the foregoing, it affects the nature of the crime of possession.

Therefore, this part of the defendant's argument is without merit.

2) Whether an act may be assessed as an act accompanying a imprudent punishment

A) Unbrupt accompanying act refers to an absorption relation, which is the form of a legal light agreement, and where an actor commits a specific crime, even though it is not logically inevitable, it satisfies other constituent elements, and in such a case, punishment is not separately considered because the illegality or responsibility of such constituent elements is insignificant compared to a principal offense (see, e.g., Supreme Court Decision 201Do1895, Oct. 11, 2012).

B) The following circumstances acknowledged by the court below and the court below’s evidence duly adopted and examined: (i) Article 11 of the Act on the Protection of Children and Juveniles against Sexual Abuse provides that the act of producing child or juvenile pornography shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding 20 million won; (ii) the act of producing obscene materials does not involve possession of obscene materials generally and externally; and (iii) the act of producing obscene materials does not constitute a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse and the Act on the Protection of Juveniles against Sexual Abuse and the Protection of Juveniles against Sexual Abuse and the Act on the Protection of Children and Juveniles against Sexual Abuse and the Act on the Protection of Juveniles against Sexual Abuse and the Act on the Protection of Children and Juveniles against Sexual Abuse and the Act on the Protection of Juveniles against Sexual Abuse and the Act on the Protection of Juveniles against Sexual Abuse, in addition, the Defendant’s act of possessing obscene materials by photographing the video of this case by itself constitutes a new violation of the Act on the Protection of Children and Juveniles against Sexual Abuse and the Act on the Protection of Juveniles against Sexual Abuse.

Therefore, the defendant's above assertion is without merit.

B. As to the assertion of unfair sentencing

It is desirable to respect the sentencing of the first instance court in cases 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 sentence of the first instance falls within the reasonable scope of discretion, it is desirable to refrain from rendering a sentence that does not differ from the first instance court solely on the ground that the opinion of the appellate court is somewhat different from that of the appellate court (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

The court below sentenced the defendant imprisonment for two years and six months in consideration of the circumstances favorable to the defendant, under which the defendant committed the crime in this case by taking the child or juvenile whose sexual identity and values have yet to be established as the subject of his distorted sexual desire, and the nature of the crime in this case is extremely poor and likely to be criticized, the mental impulse and sexual humiliation suffered by the victim and his family members seems to be reasonable, and the defendant did not receive a letter from the victim and his family members. The facts of the crime in this case are recognized, and the defendant showed an attitude against the mistake. The defendant did not seem to have been threatened or forced by intimidation or coercion during the process of taking obscene obscene materials from the victim, or distributed the above obscene materials to a third party, and the defendant was sentenced to a punishment for a prison term of two years and six months in consideration of the circumstances favorable to the defendant.

Even when considering the fact that the defendant shows an attitude to reflect his wrongness in depth and that it seems that the defendant made efforts to reach an agreement with the victim, the court below should respect the sentencing of the court below on the following grounds: (a) considering the various circumstances in consideration of the punishment as above and the defendant’s age, character and conduct, relationship between the defendant and the victim, the motive, means and consequence of the crime in this case; and (b) the circumstances after the crime, etc., the judgment of the court below does not seem to have exceeded the reasonable scope of discretion because the judgment of the court below is too unreasonable; and (c) there is no change in circumstances to be newly considered in the trial (the defendant still did not receive a letter from the victim even before the trial), and it is reasonable to respect the sentencing of the court below.

Therefore, the defendant's assertion of unfair sentencing is not accepted.

3. Conclusion

Since the appeal by the defendant is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.