2020 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media)

A

Park Jong-young and Park Jong-hoon (Public trial)

Law Firm, Law Firm Professor

[Defendant-Appellant]

April 9, 2020

Defendant shall be punished by a fine of two million won.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

The defendant shall be ordered to complete a sexual assault treatment program for 40 hours.

To order the defendant to pay an amount equivalent to the above fine.

Criminal facts

피고인은 2019. 1. 18. 02:28경 피고인의 주거지인 경기 양주시 B, C호에서 피고인의 컴퓨터를 이용하여 온라인게임 'D'에 ID 'E'으로 접속하여 게임을 하던 중, 게임 내 채팅창을 이용하여 같은 게임을 하던 피해자 F(여, 28세, ID: G)에게 "박아주게", "썅1년", "지렸어"라는 메시지를 전송하였다.

As a result, the Defendant sent to the victim a letter that may cause sexual humiliation or aversion through a computer, which is a communication medium, with a view to inducing or satisfying his or another person's sexual desire.

Summary of Evidence

1. Partial statement of the defendant;

1. A complaint;

1. The police statement concerning F;

(A) The Defendant asserts that facts are acknowledged, but there is no purpose to arouse or satisfy his/her sexual desire, and that it is not a content that may cause sexual humiliation or aversion. However, “sexual desire” includes not only the desire to directly aim or premise of sexual conduct or sexual relation, but also the desire to obtain his/her psychological satisfaction by giving a sense of sexual humiliation to the other party, such as sexual humiliation or harrassment, and such “sexual desire” is not different even if it is combined with the other party’s sense of decentralization, and whether there is “the purpose to arouse or satisfy his/her or other person’s sexual desire” should be determined reasonably in light of social norms by taking into account various circumstances, such as the relationship between the Defendant and the victim, the motive and background of the act, the means and method of the act, the content and manner of the act, and the nature and scope of the other party’s character and scope (see Supreme Court Decision 2018Do975, Sept. 13, 2018).

In full view of the following circumstances that can be recognized by the evidence duly adopted and investigated by this court, namely, the Defendant prepared a message containing sexual humiliation or fluence of a female victim; the Defendant’s voice in the game was a situation in which the victim’s gender could have been easily predicted in the process of performing the game; and the Defendant’s text posted by the Defendant, etc., the content of the message prepared by the Defendant itself appears to cause sexual humiliation in itself; and the victim receiving the above message also stated at an investigative agency that the victim caused sexual humiliation and humiliation, etc., it is reasonable to conclude that the Defendant committed an act identical to the above criminal facts with the intent to satisfy his/her psychological satisfaction by giving the other party sexual humiliation, such as sexual humiliation or harrassment, and thus, the Defendant’s assertion is without merit).

Application of Statutes

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

Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Registration and non-existence of Obligation to Submit Personal Information

According to the proviso to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, where a fine is imposed for a crime under Article 13 of the Act on the Punishment, etc. of Sexual Crimes, the accused is excluded from a person subject to registration of personal information, and the accused is not subject to registration of personal information,

Disclosure and Notification Orders and Exemption from Employment Restriction Orders

Comprehensively taking account of the Defendant’s age, type of crime, process of crime, criminal records, social benefits expected by an order of disclosure and notification, and the effect of preventing sexual crimes and the disadvantages and anticipated side effects of the Defendant, the court shall not issue an order of disclosure, notification and restriction on employment to the Defendant pursuant to 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), the proviso to Article 50(1), the proviso to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and the proviso to Article 59-3(1) of the Act on Welfare of Persons with Disabilities.

Judges Nam Young-young