Defendant 1 and three others

Defendants and Prosecutor

Materials exchange, crym metal, civil border (prosecution), cryp (public trial)

Law Firm oriented, Attorney Gyeong-sik

Incheon District Court Decision 2013 Godan6516-1 (Separation), 8553 (Consolidated), 2014 Godan1723 (Consolidated) Decided July 23, 2014

All appeals filed by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

1) The Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Defendant Company”) concerning the misconception of facts and misapprehension of legal principles as to aiding and abetting a violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (obscenity

In order to establish a crime of aiding and abetting, there should be an internal intent to permit the occurrence of the principal offender’s result, and simply recognizing the possibility of the principal offender cannot be established. However, Defendant 1 and Defendant 2 merely perceived the possibility of posting obscene materials to the clubs listed in the facts charged and did not have an intention to deliberate to allow it. Defendant 1, Defendant 2, and Defendant Company paid due attention exceeding the level required by law to prevent obscene materials from being posted. As such, there was no intention to assist the said Defendants.

2) misunderstanding of facts and misunderstanding of legal principles as to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) and aiding and abetting it (Defendant 1, Defendant 4 and Defendant

A) Each class image recorded in the facts charged by Defendant 4 (hereinafter “each class cartoon video of this case”) is a cartoon class image, and cartoon class image does not constitute “child or juvenile pornography” as prescribed by Article 2 subparag. 5 of the Act on the Protection of Children and Juveniles against Sexual Abuse. Since a person appearing in each class of cartoon class of this case does not constitute a child or juvenile group, the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) and the crime of aiding and abetting such a person cannot be established.

B) Defendant 4 merely posted the cartoon videos of this case and their introduction phrases and inserted, which were downloaded in different places, and did not know that each of the above videos was a child or juvenile pornography. Defendant 1 and Defendant Company did not know that Defendant 4 posted each of the cartoons of this case, or that each of the above videos constitutes a child or juvenile pornography. Defendant 1 and Defendant Company paid attention to the level exceeding the legal demand for the prevention of publication of child or juvenile pornography, as seen earlier. Thus, Defendant 4 did not have any intent to assist the above Defendants.

3) misunderstanding of facts and misunderstanding of legal principles as to the violation of the Juvenile Protection Act (Defendant 1)

According to Article 2 subparag. 3 of the Juvenile Protection Act, a media product harmful to juveniles shall be a media product publicly notified by the Minister of Gender Equality and Family. Defendant 1’s “○○○○○○○○○○○ (Internet address 1 omitted)” (hereinafter “○○○○○○○○”) operated by Defendant 1 does not constitute a media product harmful to juveniles since there was no fact publicly notified. In the facts charged, whether Defendant 1 distributed any media product harmful to juveniles to anyone is specified in the facts charged. Defendant 1 is not subject to the procedure of age verification when approaching a media product harmful to juveniles by ○○○○○○○○

4) Unreasonable sentencing (the defendants)

The court below's each punishment (defendant 1: one year and six months of imprisonment, three years of probation, 24 hours of order to attend a sexual assault treatment program and confiscation, defendant 2: fine of 4,00,000 won; fine of 10,000,000 won; Defendant 4: Imprisonment with prison labor of 4 months of probation; one year of probation; and 24 hours of order to attend a sexual assault treatment program) is too unreasonable.

(b) Prosecutors;

The lower court’s sentence against Defendant 1 is too unhued and unreasonable.

2. Determination of misconception of facts and misapprehension of legal principles as to aiding and abetting the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection (obscenity)

A. The judgment of the court below

The lower court found the Defendant guilty of the instant facts charged by taking account of the evidence in its judgment.

B. Judgment of the court below

원심과 당심이 적법하게 채택·조사한 증거에 의하여 인정되는 다음과 같은 사정, 즉 ① 피고인 1, 피고인 2가 운영하는 ‘△△△△(인터넷주소 2 생략)’ 사이트(이하 ’△△△△‘라 한다)의 월 매출액 중 음란물이 차지하는 비중은 약 30%에 이르고, 이는 드라마, 영화에 이어 3위에 해당하며, 위 피고인들 또한 이를 알고 있었던 점, ② 위 피고인들은 경찰에서 △△△△의 ’□-□□□□‘(운영자 공소외 1), ’◇◇ ◇◇◇‘(운영자 공소외 2), ’☆☆☆☆☆☆☆☆☆‘(운영자 공소외 3), ‘▽▽▽▽’(운영자 공소외 4)의 각 클럽에 주로 성인물이 게시되는 사정을 알고 있었으면서도, 이들 클럽에 가입된 회원이 많고 운영이 원활하게 이루어지고 있다는 이유로 공소외 2에게는 활동비 월 100만 원을, 나머지 클럽의 운영자들에게는 15,000원 상당의 월 정액권을 지급하여 왔다는 취지로 진술한 점 등을 종합하면, 피고인 1, 피고인 2가 공소외 2, 공소외 1, 공소외 4가 음란물을 클럽에 게시하여 공공연하게 전시한다는 것을 알면서도 활동비 또는 월 정액권을 지급하여 그들의 범행을 용이하게 한 사실이 인정되므로, 원심의 판단은 정당하고, 따라서 피고인 1, 피고인 2와 피고인 회사의 이 부분 사실오인 및 법리오해 주장은 받아들이지 아니한다.

3. Determination of misconception of facts and misapprehension of legal principles as to aiding and abetting the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials)

A. The judgment of the court below

The lower court found the Defendant guilty of the instant facts charged by taking account of the evidence in its judgment.

B. Judgment of the court below

1) Whether each cartoon video of this case constitutes a child or juvenile pornography

원심과 당심이 적법하게 채택·조사한 증거에 의하여 인정되는 다음과 같은 사정, 즉 ① 과거 아동·청소년의 성보호에 관한 법률 제2조 제5호 는 아동·청소년이용음란물을 ‘아동·청소년’이 등장하는 음란물로 규정하고 있었으나, 위 법률이 2011. 9. 15. 법률 제11047호로 개정되면서 아동·청소년이용음란물의 정의를 ‘아동·청소년 또는 아동·청소년으로 인식될 수 있는 사람이나 표현물’이 등장하는 음란물로 변경하였고, 현재 시행되고 있는 위 법률 또한 아동·청소년이용음란물을 ‘아동·청소년 또는 아동·청소년으로 명백하게 인식될 수 있는 사람이나 표현물’이 등장하는 음란물로 정의하고 있는바, 위와 같은 개정 취지에 비추어 이 사건 각 만화 동영상은 전형적인 ‘표현물’에 해당하는 것으로 보이는 점, ② 이 사건 각 만화 동영상의 등장인물들의 외관이 19세 미만의 것으로 보이고, 위 각 동영상의 극중 설정에 관하여 보더라도, 피고인이 스스로 자인하는 바와 같이 일본의 학제에 비추어 통상적인 경우 고등학생은 3학년의 경우에만 아동·청소년이 아닌 경우가 있을 수 있는데, 이 사건 각 만화 동영상 중 ‘◎◎◎-◎◎◎ ◎◎◎’의 경우 고등학교 2학년생이 등장하고, ‘◁ ◁◁’의 경우 고등학교 3학년생인 주인공의 동생이 등장하여 성교 행위를 하는 점 등에 비추어 보면, 위 각 동영상은 아동·청소년이용음란물에 해당한다.

2) Whether the Defendants were intentional

위 각 증거에 의하여 인정되는 다음과 같은 사정, 즉 ① 피고인 4는 ○○○○○○의 ‘▷▷▷’ 자료실에 이 사건 각 만화 동영상을 게시하면서 ‘성인’이라는 제목을 사용하였고, 위 각 동영상의 캡처 화면 또는 DVD 자켓 사진 및 영상의 대략적인 내용을 담은 소개 문구를 함께 게시한 점, ② 피고인 4가 위 각 동영상 및 화면, 사진, 소개 문구를 다른 곳에서 전송받아 그대로 게시하였다고 하더라도, 전송 및 게시 과정에서 필연적으로 그 내용을 인지하게 될 것으로 보이는 점 등에 비추어, 피고인 4는 이 사건 각 동영상이 아동·청소년이용음란물에 해당한다는 사실을 알고 있었다고 보이는 점, ③ ○○○○○○에서 실제로 운영되고 있는 클럽은 위 ‘▷▷▷’을 비롯하여 5개에 불과하였고, 피고인 회사의 직원 5명이 24시간 각 클럽에 게시된 자료들을 모니터링하고 있었던 점, ④ 그런데 위 ‘▷▷▷’ 클럽에는 이 사건 각 만화 동영상 이외에도 장기간에 걸쳐 아동·청소년이용음란물로 보이는 동영상들이 게시된 것으로 보이고, 경찰이 수사에 착수할 때까지도 피고인 회사의 직원들에 의하여 삭제되지 않은 상태였던 점 등을 종합하면, 피고인 4는 이 사건 각 만화 동영상이 아동·청소년이용음란물임을 알면서도 이를 게시하였고, 또한 피고인 1은 ○○○○○○를 운영하면서 ▷▷▷ 클럽에 이 사건 각 만화 동영상을 비롯한 아동·청소년이용음란물이 게시될 가능성이 있음을 알면서도 이를 용인한 것으로 보인다.

3) Therefore, the lower court’s determination is justifiable, and thus, it does not accept the allegation of misconception of facts and misapprehension of legal principles on this part of Defendant 1, Defendant 4, and Defendant Company

4. Judgment on the misunderstanding of facts and misapprehension of legal principles concerning violations of the Juvenile Protection Act

A. The judgment of the court below

The lower court found the Defendant guilty of the instant facts charged by taking account of the evidence in its judgment.

B. Judgment of the court below

1) Whether the site on the ○○○○○○○○ constitutes a media product harmful to juveniles

A) According to Article 2 subparagraph 2 (e) of the former Juvenile Protection Act (amended by Act No. 11673, Mar. 22, 2013; hereinafter “former Juvenile Protection Act”), a code, words, sound, or video information through telecommunications under the Telecommunications Business Act constitutes a “media product” and thus, not only individual videos but also Internet sites themselves constitute media products as prescribed by the said Act (see Supreme Court Decision 2005Du4397, Jun. 14, 2007, etc.).

In addition, Article 11(4) of the former Juvenile Protection Act provides that "the producer, publisher, distributor, or distributor of a media product or an organization related to a media product shall affix a mark corresponding to a mark indicating harmfulness to juveniles under Article 13 or pack a media product corresponding to a package under Article 14 with respect to a media product that is deemed harmful to juveniles." Article 11(6) of the same Act provides that "the media product whose mark of harmfulness is harmful to juveniles or sealed by the producer, publisher, distributor, or organization related to the media product pursuant to Article 11(4) shall be deemed a media product harmful to juveniles under this Act until the Commission on Youth Protection or an examining authority makes a final decision." Article 11(1) of the former Juvenile Protection Act provides that "The media product whose mark of harmfulness to juveniles is harmful to juveniles by the producer, publisher, distributor, or distributor of the media product or an organization related to the media product shall be deemed a media product harmful to juveniles, regardless of whether or not each examining authority requests the Commission on Youth Protection or an examining authority to verify whether such media product is harmful to juveniles.

Furthermore, Article 13(2) of the former Juvenile Protection Act provides that “The person liable to affix a mark indicating harmfulness to juveniles under paragraph (1), the type, time, method, and other necessary matters shall be prescribed by Presidential Decree.” According to delegation, Article 13(1) and attached Table 4 of the former Enforcement Decree of the Juvenile Protection Act (amended by Presidential Decree No. 24754, Sept. 23, 2013; hereinafter “former Enforcement Decree of the Juvenile Protection Act”) provides that “The person liable to affix a mark indicating harmfulness to juveniles under paragraph (1) shall indicate the word “not less than 19 years of age” as to codes, words, sound, or visual information, which are media products harmful to juveniles.

B) According to the evidence duly adopted and examined by the lower court and the lower court, Defendant 1 is recognized to have operated the site indicating “sexual +” (hereinafter “instant adult site”) within ○○○○○○○○○○○○○.

C) Furthermore, in full view of the following circumstances recognized by the aforementioned legal principles and facts, namely, ① individual videos distributed through the instant adult website, as well as the above site itself may constitute a media product harmful to juveniles as prescribed by the former Juvenile Protection Act; ② Defendant 1’s marking the phrase “sexual +” on the above site appears to have made an indication corresponding to the phrase “sexual +” under the former Juvenile Protection Act and the Enforcement Decree of the Juvenile Protection Act; ③ there is no evidence to deem that the Juvenile Protection Committee or each deliberative body confirmed that the adult site of this case was not harmful to juveniles, it is reasonable to deem that the adult site of this case constitutes a media product harmful to juveniles as prescribed by the former Juvenile Protection Act.

2) Whether Defendant 1 distributed the instant site to juveniles without verifying the age and identity of the other party

A) Article 16(1) of the former Juvenile Protection Act provides that “A person who intends to sell, lend, or distribute media products specified by Presidential Decree as media products harmful to juveniles, or provide them for viewing, watching, or using shall verify the other party’s age and identity, and shall not sell, lease, distribute, or provide them for viewing, viewing, or using.” Article 16(4) of the same Act provides that “The other party’s age and identification method under paragraph (1), and other matters necessary for the prohibition of sale of media products harmful to juveniles shall be prescribed by Presidential Decree.” In addition, Article 17 of the Enforcement Decree of the former Juvenile Protection Act provides that “The method of verifying identification cards through face-to face or a copy of identification cards received by facsimile or mail” (Article 17 subparag. 1), “a certified electronic certificate under Article 2 subparag. 8 of the Digital Signature Act (Article 2 subparag. 2), “a person’s resident registration number pursuant to Article 23-2(2) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.” (Article 4(2) and Information Protection Act).

Furthermore, in cases where media products harmful to juveniles are distributed through the Internet without age and identity verification, there is no way to prevent unspecified juveniles from using the media products through access to the Internet, and as long as a business operator who distributes media products harmful to juveniles for profit does not keep the information of the other party to their distribution (such as ID and personal information, connected son address, etc.) by himself/herself, there is no way to identify the other party to distribute them, and today’s number of juveniles are accessing media products easily through the Internet and the social necessity to block them is also great, in light of the following: (a) if a business operator operates an Internet site corresponding to media products harmful to juveniles without installing a device to prevent access in cases of juveniles by checking the other party’s age and identity pursuant to Article 16(1) of the former Juvenile Protection Act; (b) if a business operator operates the Internet site without installing a device to block access to the above site, it constitutes a crime of violating the Juvenile Protection Act, regardless of whether a specific juvenile

B) According to the evidence duly adopted and examined by the court below and the court below, when entering the ID and password of the members of ○○○○○○○○○○○, and accessing the adult website of this case without log, it shall be converted to the screen to confirm their age and identity. However, if a member with adult certification enters the ID and password and connects them to the log, it is acknowledged that it is immediately converted into the screen of the content content list without going through the procedure for verifying their age and identity.

C) Furthermore, in light of the following circumstances acknowledged by the aforementioned legal principles and facts, i.e., entry of a member ID and password, not listed in the method of verifying the age and identity as seen earlier, and (ii) Defendant 1’s inspection conducted four times from May 15, 2013 to August 5, 2013 by the Ministry of Gender Equality and Family, confirmed the age and identity solely by entering the ID and password from the adult website of this case, and it was necessary to correct it because it was in violation of Article 16(1) of the former Juvenile Protection Act, even though Defendant 1 received a public notice from the Ministry of Gender Equality and Family, taking into account the fact that it was corrected only on November 1, 2013, Defendant 1 operated the adult site of this case, which is a media product harmful to juveniles, and distributed it to juveniles without undergoing the user’s age and identification procedure.

3) Therefore, the lower court’s determination is justifiable, and thus, it does not accept the allegation of mistake and misapprehension of legal principles on this part of Defendant 1 and Defendant Company.

5. Determination on the assertion of unreasonable sentencing

In full view of the favorable circumstances such as the absence of the record of punishment for the same kind of crime or the absence of the record of being sentenced to a fine exceeding the fine, today’s Internet site, where obscene materials are distributed and distributed in a non-discriminatory manner, and there are considerable social harm therefrom, the Defendants committed the instant crime for profit-making purposes, and other unfavorable circumstances such as the Defendants’ personality, conduct and environment, circumstances before and after the commission of the crime, etc., and other various sentencing conditions as shown in the records and arguments, the sentence imposed by the court below is not too heavy or too harsh.

6. Conclusion

Therefore, the Defendants and the prosecutor’s appeal is dismissed in accordance with Article 364(4) of the Criminal Procedure Act on the grounds that there are no grounds for appeal, and it is so decided as per Disposition. [However, since Article 50 subparag. 1 and Article 17(1) of the former Juvenile Protection Act (amended by Act No. 11673, Mar. 22, 2013) in the applicable provisions of the judgment of the court below with respect to Defendant 1 is apparent that the phrase “Article 50 subparag. 1 and Article 17(1) of the former Juvenile Protection Act (amended by Act No. 11673, Mar. 22, 2013)” is correct as “Article 58 subparag. 1 and Article 16(1)

Judges Kim Gung-do (Presiding Justice)