[1] The meaning and requirements of “obscenity” under Article 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and the criteria and method for determining whether representations are obscene

[2] In a case where Defendant A’s representative director Eul and operation manager Defendant Byung and Defendant Byung et al. were indicted for violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (obscenity distribution), on the ground that the aforementioned text message constitutes “obscenity” in a case where: (a) in collusion with Defendant A’s representative director Eul and management manager Eul; (b) expressed or describe women’s sexual organ, self-defense and sexual acts, including sexual acts with unspecified majority at Gap’s office using a mass text message site; and (c) received text message expressing or expressing it by mass; or (d) distributed obscene text message via an information and communications network

[1] “obscenity” as stipulated in Article 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. refers to an act contrary to the concept of sexual morality by stimulating ordinary people’s sexual desire, and impairing their normal sexual humiliation. This means an act of expression or expression of sexual humiliation or behavior in an explicit manner to such an extent that the overall observation and evaluation of a expressive material is deemed to have seriously damaged and distorted the human dignity and value of a person who has the personality to be respected and protected beyond the degree that it merely renders indecent or disturbed sense. In light of social norms, it refers to an act of not having the literary, artistic, ideological, scientific, medical, medical, or educational value, such as hys appeal only for sexual interest, and hysic, scientific, medical, or educational value. In determining whether a expressive material is obscene, not subjective intent of the producer, but at the average of the society’s society, an objective and normative evaluation should be made in accordance with the sound social norms.

[2] In a case where Defendant A’s representative director Byung and manager Byung, Defendant Byung and Defendant Byung conspired with each other to use a large number of unspecified mobile phones using a large text message site to transmit 31,342 text messages containing indecently and explicit expressions or expressions expressing or suggesting sexual acts, etc. to an unspecified number of unspecified mobile phones, the case holding that the court below erred in the misapprehension of the legal principles as to sexual humiliation and artistic value of people beyond the degree of harming sound sexual consciousness, and thus, found Defendant A’s sexual humiliation and artistic expression to constitute a violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (obscenity) on the ground that the above text messages were distributed through an information and communications network, and thus, was prosecuted for a violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (obscenity).

[1] Articles 44-7(1)1 and 74(1)2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. / [2] Articles 44-7(1)1, 74(1)2, and 75 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.; Article 30 of the Criminal Act

[1] Supreme Court Decision 2006Do3558 decided Mar. 13, 2008 (Gong2008Sang, 537)

Defendant 1 and three others

Prosecutor

Busan District Court Decision 2015No3926 decided May 27, 2016

The non-guilty part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. Summary of the facts charged regarding the acquittal portion of the lower judgment

No one shall distribute obscene language and text through an information and communications network.

From June 27, 2013 to March 31, 2014, Defendant 1, Defendant 2, and Defendant 3 conspired and sent 31,342 text messages (hereinafter “instant text messages”) to an unspecified number of mobile phones collected by Defendant 4’s office using the website of mass text messages.

Defendant 4 Co., Ltd. committed a violation of distribution of obscene language and text through the information and communications network as seen above by Defendant 1, the representative of Defendant 1, at the above date and place.

2. Determination

A. The term “obscenity” under Article 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) refers to an act contrary to the concept of sexual morality by inducing an ordinary person’s sexual humiliation and impairing the normal sexual humiliation by stimulating the ordinary person’s sexual desire. This is not subjective expression of the producer’s sexual desire, but rather, objective and normative evaluation should be made from an average society’s perspective in light of social norms, such as objective and sound social norms, of the society’s average perception and value, of a person who has the character to be respected and protected beyond the degree that it merely gives rise to indecent or disturbed criticism.

B. Examining the foregoing legal doctrine and the evidence duly admitted, the instant text message ought to be deemed as constituting “obscenity” for the following reasons.

1) The instant text and text expressed or expressed a indecent and explicit expression or expression of a woman’s sexual organ, self-defense, and sexual intercourse with an unspecified number of people, etc. Therefore, this may be deemed to have seriously damaged or distorted the dignity and value of a person beyond the degree that merely expresses anti-social sexual intercourse, etc. that undermines a sound sexual sense.

2) Defendant 1, Defendant 2, and Defendant 3 had the purpose of advertising to allow many and unspecified persons who receive the instant text messages to use their own businesses with adults who operate or manage the instant text messages. The content of the instant text messages is contrary to the concept of sexual morality by stimulating ordinary people’s sexual desire by stimulating them to feel sexual humiliation and undermining normal sexual humiliation.

3) In light of the motive and content of the transmission of the instant text messages by Defendants 1, 2, and 3, the cultural, artistic, ideological, scientific, medical, and educational value of the instant text messages cannot be found from the text messages.

C. Nevertheless, the lower court upheld the first instance judgment that acquitted the Defendant of this part of the facts charged, deeming that it is difficult to recognize the obscenity regarding the instant language and text. In so doing, the lower court erred by misapprehending the legal doctrine on the obscenity in the crime of violating the Information and Communications Network Act (obscenity), and the Prosecutor’s ground of appeal assigning this error is with merit

3. Scope of reversal

In a case where only the prosecutor appealed on the part of the concurrent crimes against which the defendant and the prosecutor did not appeal on the part of the acquittal, the part of the conviction which the defendant and the prosecutor did not appeal on the part of the concurrent crimes became final and conclusive as the period of appeal elapses, and the case pending in the final appeal is prosecuted on the part of the judgment of innocence. Thus, the part of the acquittal should be reversed in the final appeal (see, e.g., Supreme Court en banc Decision 91Do1402, Jan. 21, 1992). Ultimately, the lower court’

4. Conclusion

All of the judgment below's non-guilty parts are 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 Cho Jae-chul (Presiding Justice)