2013Do7761 Violation of Act on Promotion of Information and Communications Network Utilization and Information

A

Prosecutor

Incheon District Court Decision 2013-742 Decided June 21, 2013

December 12, 2013

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. Summary of the facts charged

The summary of the facts charged in this case is that the Defendant maintained a e-mail between the victim E (the age of 47, female) and the Defendant from November 2010 to Canada for several months. On October 11, 2011, around 17, 201, the Defendant tried to make the victim’s e-mail before the victim’s e-mail. However, if so, the victim’s e-mail, letter, Messen, Messenssen, and phone calls for a lot of stories that would be completed. However, the Defendant sent the e-mail that would have been too large to the end at this time, and from that time until December 25, 2011, the Defendant reached the victim’s repeated text that may cause a e-mail, e-mail, Messenssen, Messenssen, and telephones over a total of 20 times, as indicated in the written list of crimes in the judgment of the court below.

2. The judgment of the court below

Of the facts charged in the instant case, the lower court found the Defendant not guilty on the ground that the part of the facts charged constituted a case where there is no proof of a crime, in full view of the following circumstances: (a) as indicated in the attached Table Nos. 1 through 11 of the crime sight table (hereinafter referred to as “each act listed in the attached Table No. 1 of the lower judgment”) as indicated in the lower judgment between October 17, 201 and November 20, 201; and (b) the part that repeatedly shows an uneasiness over 11 times as indicated in the attached Table Nos. 1 through 11 of the crime sight table as indicated in the lower judgment (the number is indicated only when referring to each act listed in the attached Table No. 1 of the lower judgment).

3. Judgment of the court below

A. It is difficult to accept the lower court’s finding the Defendant not guilty of the portions indicated in subparagraphs 1 through 5, 7, and 11 of the instant facts charged for the following reasons.

1) Article 74(1)3 and Article 44-7(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. are punished for repeatedly reaching other parties any codes, words, sound words, images, or videos that cause fear or apprehensions through an information and communications network.

Here, whether it constitutes a "act of repeatedly reaching the other party" should be determined by taking into comprehensive consideration the contents of the language sent by the defendant to the other party, the method of expression, the sound meaning, the relationship between the defendant and the other party, the circumstance of sending the text, the frequency of sending it, circumstances before and after it, the situation of the other party's custody, etc.

2) According to the evidence adopted by the court below, the defendant maintained a ties relationship with the victim from around November 2010 to around September 201, 201. The defendant repeated acts such as telephone and sending text messages to the victim several times thereafter, and sent e-mail, Ma, Ma, and Ma-mail to the victim from around October 17, 201 to around 19:37, 201. The defendant sent 10 times e-mail, Ma-mail, and Ma-mail to the victim from around 10, 201. The defendant was aware of the relationship between the defendant and the victim with the victim and the victim, and the defendant and the victim were aware of the relationship between the victim and the victim and the victim's Ma-Ba, and the defendant was aware of the relationship between the victim and the victim's Ma-Ba and the victim's Ma-Ba. The defendant did not appear to have a Ma-Ma-ri relationship between the victim and the victim.

Examining the above facts in light of the legal principles as seen earlier, the language and text that the Defendant sent the victim using the information and communications network includes indirectly expressing that the Defendant may inform the victim’s neighbors or the husbands of the victim in Korea of the relationship with the victim, and in fact, the Defendant took measures to allow the victim to contact with her husband or to know the relationship with her husbands, and the victim’s speech that the victim’s e-mail and telephone contact with e-mail and telephone calls the Defendant’s mother and telephone call for solving the problem. If the Defendant’s relationship with her husband is known to her husband, it is reasonable to view that the Defendant’s sending the victim’s e-mail over 10 occasions to reach the victim’s fear or apprehension through the information and communications network is an act of repeatedly causing fear or apprehension through an information and communications network.

Nevertheless, the lower court rendered a not-guilty verdict on the part of the facts charged in this case Nos. 1 through 5, 7, and 11. In so doing, the lower court erred by misapprehending the legal doctrine on “the act of repeatedly reaching the other party,” thereby adversely affecting the conclusion of the judgment.

B. As to the part on No. 6 of the facts charged in the instant case

According to the evidence adopted by the court below, it is recognized that the defendant made a statement of the same content as that stated in No. 6 of the facts charged in this case by telephone at the end of October 2011. However, there is no evidence to acknowledge that the other party to the telephone call is a victim. Rather, according to the police statements and the content of the police statements of the defendant and the victim, the other party is recognized only as the Hague. Furthermore, even if the victim’s speech delivered the contents of the Defendant’s telephone to the victim, the contents of the telephone cannot be deemed as the statement reached the victim through the information and communications network. Thus, the crime of violation of Articles 74(1)3 and 44-7(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., committed against the victim cannot be said to be established.

Therefore, the decision of the court below on the part No. 6 of the facts charged of this case cannot be justified, but it is just in its conclusion that the court below acquitted the defendant, and it did not err in the misapprehension of legal principles as alleged in the grounds of appeal.

4. Conclusion

Therefore, the part of the judgment of the court below which found the defendant not guilty should be reversed. Since the part which the court below found the defendant guilty and the part which found the defendant not guilty is related to a single crime, the entire judgment of the court below is reversed and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Shin Jae-young in charge