Defendant

The highest secretary, the second secretary, the second secretary, the second secretary, and the second secretary.

Attorney Park Sung-nam et al.

A defendant shall be punished by imprisonment for three years.

To order the defendant to complete a sexual assault treatment program for 80 hours.

The disclosure of information on the accused shall be made public and notified through an information and communications network for five years: Provided, That the summary of a sexual crime being made public and notified shall be limited to the crimes of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity

1. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) and violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity

On April 25, 2017, at the Defendant’s residence located in Mapo-gu Seoul ( Address omitted) ○○○ Housing 300, the Defendant accessed Nonindicted Party 1 (hereinafter “Defendant”), a juvenile, who became aware of ○○○○○○○○○○○ by using the Kakakao Kakax, and, after being aware that the victim lost 6.80,00 won of the 180,000 won, the Defendant sent the victim with the victim’s name, knowing that she would have lost 6.80,000 won of the Kakao x, and later sent the victim’s photograph and bale image with the victim’s name, including the video, which she exceeded the Kakao x, or self-depied, and sent it in sequence to the victim’s order, and the Defendant appeared to have a female’s name, female image and bale image, etc., in which she shared obscenity with obscenity boxes.

As a result, the Defendant produced child and juvenile pornography and sent images that may cause sexual humiliation or aversion to the victim through telephone or other communication media for the purpose of meeting the sexual desire.

2. Attempts to compel;

Around April 25, 2017, the Defendant, using the Kakakao Messen, tried to take pictures of the victim Nonindicted Party 1 while communicating with the victim Nonindicted Party 1, using the victim’s Kakakao Messenssen, and used that the Defendant was in custody of the victim’s b body pictures and self-defacing video, thereby seeking to report the cryp video. I wish to transmit the victim’s cryp video to the victim. If so, I would like to go off the clothes of women and women, who were in the sixth grade of elementary school, and would be able to use the dypical video in mind. If so, I would like to use the dyp-oriented video in mind at present, and had the victim take the cryp of the female Nonindicted Party 2, who was self-confacing, and tried to do so without having the victim respond to it.

Accordingly, the defendant attempted to threaten the victim to perform an unobligatory act, but he attempted to commit an attempted act.

1. Partial statement of the defendant;

1. The police statement of Nonindicted Party 2

1. Each investigation report, internal investigation report, closure photographs, DVD;

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

Article 11(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the production of child and juvenile pornography, including, but not limited to, the selection of limited imprisonment), Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the use of telecommunications media, including, but not limited to, the use of obscenity), Article 324-5 and Article 324(1) of the Criminal Act (the attempted charge of coercion, the choice of imprisonment

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (within the scope of adding up the long-term punishments of each of the above crimes) shall be concurrent crimes with the punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse (production, Distribution, etc. of obscenity)

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following circumstances considered as favorable to the reasons for sentencing)

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An order for disclosure and notification;

The main sentence of Article 49(1)2 and the main sentence of Article 50(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. The assertion and judgment on the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, Distribution, etc. of obscenity)

A. Summary of the assertion

As long as the Defendant had the victim take photographs of the scene of self-defense, etc. and received a Kakao’s transmission of the video, it does not constitute “production” under Article 8(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, unless the Defendant did not store the video in his/her cell phone.

B. Determination

1) Article 11(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse provides that a person who produces, imports, or exports child or juvenile pornography shall be punished by imprisonment for life or for a limited term of not less than five years. Article 2 Subparag. 5 of the same Act provides that “child or juvenile pornography” means an act falling under any of subparagraph 4 due to the appearance of a child, juvenile, or a person or an expression that may clearly be perceived as a child or juvenile (a.b. sexual intercourse; (b) similar sexual intercourse using a part of the body, such as the mouth and anus, or a tool; (c) any act of contact or exposing all or part of the body, which causes a sense of sexual humiliation or aversion of ordinary people; (d) self-defensing any other sexual act or expressing any other sexual act in the form of a film, video, game software, computer, or other communication medium.”

2) The legislative purpose of punishing the production of “child or juvenile pornography” as above is to protect the sex of children or juveniles at the level of public morals or social ethics. As the commercialization of children or juveniles, namely, commercial sex acts of children or juveniles, production and distribution of obscene materials using children or juveniles, and sexual exploitation against children or juveniles have emerged as serious social issues, the legislative purpose of protecting and remedying children or juveniles’ human rights and raising them as healthy members of society is to strengthen punishment for the production of obscene materials such as films, video tapes, computers and other media, which are the representative cases of sexual exploitation for children or juveniles, and to protect children or juveniles by using the same as those of children or juveniles, and to protect children or juveniles from such unlawful distribution of obscene materials, as well as to protect children or juveniles’ emotional and mental dependence on the production of obscene materials such as video products, etc. to achieve such legislative purpose, and to protect children or juveniles from such unlawful distribution of obscene materials as well as to protect children or juveniles by means of social or visual harm or other media as well as to protect them after such acts.

3) 살피건대, 이러한 아동·청소년의 성보호에 관한 법률의 규정 내용 및 그 입법목적과 보호법익에다가 다음과 같은 사정 즉, ㉠ ‘제작’의 사전적 의미는 ‘재료를 가지고 기능과 내용을 가진 새로운 물건이나 예술작품을 만드는 것’으로, 문언상 제작의 재료나 제작의 방법에 어떠한 제한이 있는 것은 아니고, 아동·청소년의 성보호에 관한 법률은 ‘아동·청소년이용음란물’에 관하여 자세한 정의 규정을 둔 것과 달리 ‘제작’에 관해서는 별다른 정의 규정을 두고 있지 아니하면서 제작의 방법이나 제작의 목적 등에 관하여 아무런 제한을 하고 있지 아니한 점, ㉡ 음란물은 법의 보호를 받지 못할 뿐 영상과 음향 등으로 구성된 무형물이라는 측면에서 저작권법에서 보호하는 음반 및 영상들과 그 성질이 유사한데, 저작권법 제2조 제6호 , 제14호 에서 ‘제작’의 의미에 관하여 ‘음반 또는 영상물을 전체적으로 기획하고 책임을 지는 것’으로 규정하고 있는 점, ㉢ 현재의 카메라, 컴퓨터 및 통신기기 등의 기술 수준에 비추어 보면, 단순 촬영한 디지털 영상만으로도 즉시 유포가 가능한 음란물을 쉽게 생성할 수 있어 촬영과 제작을 명백히 구분하여야 할 실익이 거의 없으므로, 촬영을 마친 영상물을 별도의 편집 등을 거친 후에야 비로소 아동·청소년이용음란물로 볼 수 있는 등의 특별한 사정이 없는 한 위 제2조 제5호 에 정한 아동·청소년이용음란물의 촬영이 종료되어 그 촬영된 영상정보가 파일 등의 형태로 그 디지털카메라나 녹화 기능이 탑재된 휴대전화, 스마트폰의 주기억장치에 입력되는 시점에 하나의 아동·청소년이용음란물이 완성된 것으로 봄이 상당한 점, ㉣ 인터넷 등 정보통신매체의 발달로 인하여 음란물이 일단 제작되면 제작 후 사정의 변경에 따라, 또는 제작자의 의도와 관계없이 언제라도 무분별하고 무차별적으로 유통에 제공될 가능성을 배제할 수 없어 ‘제작’을 엄격히 규제할 필요가 있으므로, 제작한 영상물이 객관적으로 아동·청소년이 등장하여 성적 행위를 하는 내용을 표현한 영상물에 해당하는 한 그 대상이 된 아동·청소년의 동의하에 촬영한 것이라거나 사적인 소지·보관을 1차적 목적으로 제작한 것이라고 하더라도 ‘아동·청소년이용음란물’의 ‘제작’으로 봄이 상당한 점( 대법원 2015. 2. 12. 선고 2014도11501, 2014전도197 판결 등 참조) 등을 보태어 보면, 피고인이 범죄사실 기재와 같이 돈을 준다는 명목으로 피해자로 하여금 스마트폰으로 스스로 자위행위 등을 촬영하게 한 다음 그 스마트폰에 저장된 그 동영상 파일을 카카오 메신저로 전송받은 행위는 아동·청소년의 성보호에 관한 법률 제8조 제1항 의 ‘제작’에 해당한다고 보아야 하고, 피고인이 그 동영상을 자신의 휴대폰 등에 별도의 파일 형태로 저장하지 아니하였다고 하여 달리 볼 것은 아니다.

4) Therefore, the Defendant and the defense counsel’s above assertion is without merit.

2. The assertion and judgment on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media);

A. Summary of the assertion

The defendant is only transmitting two video images and three photographs to the victim with the consent of the victim, and does not transmit them to the victim against the victim's will. Thus, the defendant does not constitute a violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media)

B. Relevant legal principles

Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides for “a person who sends another person any words, sounds, letters, pictures, images, or other things (hereinafter referred to as “a picture, etc.”) that may cause a sense of sexual shame or aversion by telephone, mail, computer, or other means of communication with intent to arouse or satisfy his/her own or other person’s sexual desire.” Therefore, “crime of obscenity using communications media” under Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is intended to guarantee “the right not to contact one another person’s pictures, etc. causing a sense of sexual humiliation against his/her own or other person’s sexual self-determination,” and is protected to protect sexual self-determination and general personality rights, to establish sound sexual morals in society.” Here, “a person who has reached another person with a view to causing a sense of sexual shame” refers to “an act of having the other party recognize it in a situation where the other party is actually aware of it by means of an Internet link, etc.” in light of the content and method of the Internet link, etc.

However, in exceptional cases where the transmission and arrival of pictures, etc. causing sexual humiliation are deemed to have obtained prior consent according to the legitimate exercise of the right to self-determination of a person with a sporadic personality, the right to pursue happiness, or the right to privacy, which are guaranteed by the Constitution, in light of the victim’s age, intelligence, intellectual level, maturity development and social adaptation ability, etc. In determining whether the victim has given prior consent, the victim’s meaning of the crime in question, whether the victim was able to understand and understand the damaged circumstances, meaning, content, and effect of the consent, the purpose, motive and circumstance of the transmission and arrival, the transmission and arrival, whether the victim’s consent or involvement was made voluntarily and seriously, and whether the victim’s consent or involvement was given, and the contents and attitude of the sexual act expressed in the victim’s forests, etc. should be determined with careful consideration. In particular, if the sender’s prior consent was made by intimidation, etc., it is difficult to view that the victim’s consent was contrary to the victim’s free expression and consent (see, 2015).

C. Determination

1) According to the records of this case, the defendant and the victim classified conversations on obscene videos, etc. at the Kakao Stockholm at the time of this case, and introduced the defendant with obscene videos, etc. to collect obscene videos, etc., or sent them to the defendant, and the defendant sent the victim a photograph of a third party sexually related video or a specific female body part of the victim, which he had in advance as stated in the facts constituting a crime, and the victim sent the victim a photograph of a third party’s sexually related dynamic images or a specific female body part of the victim’s body. It is recognized that the victim did not explicitly expressly express his intention of refusal.

2) However, according to the evidence duly adopted by this court, the following facts can be acknowledged. In particular, the defendant can be found as having many experiences similar to this case, and the defendant is a person with extensive experience in this case, and the defendant requires the victim to take and transmit images of self-defense to meet his own sexual desire on the following day by using a fluorial contact with the victim who was immediately in need of money, and forcing the victim to take and transmit the images of self-defense and do so. On the other hand, the victim seems to have been transmitted the video of this case in the process of responding to the defendant's unreasonable demand or instruction passively due to the fact that he paid money to the victim, and in light of all the circumstances such as the difference between the defendant and the victim's age and intellectual level, the defendant and the victim's words and actions before and after the crime, even if the victim clearly and voluntarily instructed the victim to conduct various sexual acts against the victim's will that was not properly formed at the time of the defendant's voluntary and voluntary transmission, and the victim cannot be viewed as complying with the victim's's unilateral transmission and voluntary instruction.

A) At the time of committing the instant crime, the Defendant was 24 years old as well as the victims of the instant case, who had many experiences similar to the instant case, such as receiving obscene videos from other minors and holding them in one’s smartphones, and spreading them to other persons. The victims are still 18 years old as high school students. The victims were first known through “○○”, a smartphone display case, and were given and received cell phone numbers, and the Defendant started hosting using Kakakao Stockholm from around 22:30 of the instant day to around 22:30, and at the time, the Defendant used the name “△△△” using the foreign telephone number account.

B) During that process, the victim clearly stated that 680,000 won should be required from the following day to the morning, and the Defendant suggested that the victim be aware of the victim by taking a photograph by indicating account balance, etc., and then, the victim would be aware of the victim’s face and then, if so, to resolve the problem of money. The victim consented.

C) According to the Defendant’s specific instructions, the victim controlled smartphone camera paintings, the location of shooting, the place of shooting, and the degree of shooting, and sent by affixing several photographs with the bell uniforms directly to the Defendant. Then, the victim, upon the Defendant’s motion continued, sent the images of the motion picture, the motion picture with his body, the motion picture with his body, or the motion picture with his body, or the motion picture with his body, etc., in sequence, in which he taken and sent them in order.

D) In the event that the Defendant continued to have transmitted a large number of obscene videos as seen above, the victim introduced a different hosting room to facilitate access to the general obscenity videos to the Defendant himself/herself, and began sending a large number of general obscenity videos upon the Defendant’s request to send one of the audio videos listed in the hosting room.

마) 이에 피고인은 “귀엽네”, “이건 본거네”, “너가 보고 좋았던거 보내봐”라는 식으로 대답하다가 반대로 피해자에게 동영상 2개와 사진 3장을 보내면서 “내가 스폰하는 애랑 찍은 거야”, “쟤 16살인데, 쟤도 스폰이었어, 나쁘지 않았지”, “교복입고 한거야, 난 이러고 후장 박는 거 좋아해”라는 식으로 소개하였다.

F) Meanwhile, in the process of viewing the victim’s dynamic image, the Defendant discovered that the victim’s primary school student was a female student at the victim’s room, and demanded the victim to photograph and transmit the images to the victim himself/herself.

G) The victim again rejected the Defendant’s request for a face-to-face meeting with the reason that it is difficult for the victim to shoulder because he was living together. However, the Defendant continued to request female scambling and expressed that he would not offer the money he promised to do so without complying with the request. However, the victim was scambling the scams of female scam and scambling the scam of female scam.

H) Since then, the victim asked the Defendant to take and transmit the image of the elementary school student who wants to take and transmit the image of the first school student who wished to take a school life later, but the Defendant unilaterally terminated the hosting, on the ground that it is difficult to avoid, by demanding the Defendant to send the image of the elementary school student.

I) From 07:25 a.m. on the day of the instant case, the victim again asked the Defendant to send money promised to the Defendant through the Kakakao Stockholm. Although the Defendant promised to comply with the Defendant’s direction on the condition of receiving money, the Defendant refused to send money promised to the Defendant on the ground that he did not comply with the Defendant’s instruction to take and transmit the female students’ self-definite images, and then, in the process of dispute with the victim, the victim induceds the victim as follows: “I would give the money that he promised to send the female students’ self-definite images even if he did not go against,” or did not send money that he promised to end.

j) On the following day of the instant case, the victim appealed to the effect that he/she would have been forced to appear in the police and have been forced to attract the Defendant.

3) Therefore, the Defendant and the defense counsel’s above assertion is without merit.

On the other hand, each of the crimes of this case is that the defendant provided money to female juveniles who need money rapidly using the Kakao Kakao to have the victim take pictures of her own act and transmitted it to the victim, and when the victim becomes aware that her primary school student has sexual humiliation or aversion for the purpose of meeting her sexual desire, the crime of this case was attempted to give money to the victim her own right, or to have the victim take pictures of her own dynamic behavior with the victim's mind in advance by threatening her will to spread her image in advance, and the crime of this case is not very good. Accordingly, the crime of this case was committed by high school students with sexual identity and values yet to be formed, and the victim was forced to feel sexual humiliation and mental pain for the purpose of meeting her own sexual desire, and the defendant was forced to use her obscenity sexual crime for a limited period of 10 years under the Act on Special Cases Concerning the Protection of Children and Juveniles against Sexual Abuse, and the crime of this case was committed against the victim's order to use obscenity during the period of 20 years 20.

On the other hand, the crime of coercions results in attempted crimes, and the defendant did not leak or distribute video images, etc. transmitted by the victim to another place, and thus additional damage was not incurred. The defendant paid 20 million won to the victim and paid 20 million won to the victim, and the victim's wife wished to take advantage of the victim's wife, and the victim's wife and family members wanted to take advantage of a relatively clear social ties relationship. The defendant's age, character and behavior, environment, motive, means and consequence of the crime, and all the kinds of sentencing conditions shown in the arguments of this case, including the circumstances after the crime, shall be determined as ordered.

Where this judgment becomes final and conclusive, the Defendant is subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus, is obligated to submit personal information to the competent authority pursuant to Article 43 of the same Act (In full view of the statutory penalty, nature of the crime, the crime, the circumstances leading to the aggravation of concurrent crimes, etc., the instant case does not seem to have any circumstance to determine the period of registration of personal information for a shorter period than the period according to the sentence, pursuant to Article 45(4) of the Act on Special Cases concerning

Judges Lee Dong-sik (Presiding Judge)