2017 Highest 1774 Violation of the Special Act on the Punishment, etc. of Sexual Crimes

(obscenity by means of communications media)

A

Boshee(s) and Park Ho-hee(s)(s)

Law Firm Young-jin, Attorney Park Jong-soo

Attorney Choi Young-young

June 5, 2018

The defendant shall be innocent.

1. Summary of the facts charged

The Defendant, as the president of the Seogu-gu C Hospital, sent and sent the victim and E message in the process that the victim D (the age of 42) who is an assistant nurse employed by himself, was able to resolve the defect due to a mash with other employees.

In the meantime, the Defendant was aware of the fact that the victim was sexual harassment, etc. even if he was sexually and not related to other employees, and was unable to easily notify the victim of sexual harassment, etc., and that the victim could not easily refuse his request by providing the victim with benefits such as raising monthly pay to the victim or providing additional payment of monthly pay, etc., which led to concerns over the disadvantage of his status, such as dismissal, and used the aforementioned circumstances to transmit obscene videos to the victim to satisfy his sexual humiliations.

Accordingly, at around 13:05 on November 25, 2016, the Defendant sent to the victim a sexually related video imageF exposed to the sex of both men and women using his/her smartphone in his/her smartphone at the above C Hospital, and then sent nine obscene video images of sexually related dynamics exposed to the sex of both men and women from around December 10, 2016 to the victim from around December 10, 2016, as indicated in the attached list of crimes.

As a result, the Defendant sent to the victim images that cause sexual humiliation or aversion using the communication media called mobile phones with a view to inducing or satisfying his own sexual desire.

2. Determination

Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that any person who sends another person any words, sounds, letters, pictures, images, or other things 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 another person's sexual desire shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding five million won. In light of the language, structure, and nature of the above provision, obscenity using communications media that the above provision is subject to punishment is naturally included in the content against the victim's will, and thus, it is reasonable to view that the above elements are excluded prior to discussing illegality where the victim's understanding or consent is obtained. Therefore, even where the other party reaches the other party to the statement, sound, writing, picture, image, or things (hereinafter referred to as "sumed images, etc.") through communications media, such crime cannot be deemed to have been established if the other party understand such provision with regard thereto.

In this case, the complainant stated that D had sent a message that could be inferred to actively respond to the delivery of obscene videos, etc. by the original investigative agency beyond the passive acceptance or confluence (it is not stated that the description of the steam is inappropriate to be invoked as it is in the judgment). After that, even though the complainant reversed the contents of the above statement in a state where the restoration of E message, etc. was not properly performed, it is difficult to dismiss without permission the credibility in that it was made after the victim’s husband who was examined together with the above statement was left away and left.

If we look at the relationship between the defendant and the complainant and the content of the message exchanged with each other, it is difficult to eliminate the possibility that the defendant had an understanding of the complainant with respect to the transmission of obscene videos, etc. from the complainant, and even if it does not fall short of this, there is sufficient possibility that the defendant was mistaken for such understanding from the defendant at least from the defendant's point of view (this fact is dismissed as a mistake of fact, and there is no penal provision on the use of obscene media).

Therefore, the evidence presented by the prosecutor alone is insufficient to readily conclude that the act identical to the facts charged by the defendant meets the elements of the crime of obscenity in telecommunication media, without any reasonable doubt, and there is no other evidence to acknowledge it.

3. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of crime, the court rendered a judgment of innocence under the latter part of Article 325 of the Criminal Procedure Act, and the court did not render a judgment of innocence under the proviso of Article 58(2)

Justices Kim Tae-tae

A person shall be appointed.