[1] The principle of interpreting penal provisions

[2] Whether “enda” is also included in “enda” which arouses fears or apprehensions under Article 74(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (affirmative)

[3] The case holding that the act of repeatedly delivering words or voice messages causing fears or apprehensions through the victim's cell phone at least seven times through the mobile phone constitutes a crime of violation of Article 74 (1) 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[1] Penal provisions must be strictly interpreted and applied in accordance with the language and text, and they shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, in the interpretation of penal provisions, the teleological interpretation in light of the legislative intent, purpose, history, etc. of the law shall not be excluded unless it goes beyond the ordinary meaning of the text and text of the

[2] In line with the changes in the information and communications environment such as the distribution and spread of new services using information and communications networks, the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. was amended on January 26, 2007 to repeatedly reach the other party a "mark that arouses fear or apprehensions" through information and communications networks, but it is consistent with the legislative intent and purpose of the amendment to deem that the act using the existing "end or writing" was also included in acts of infringement using the "written words" and was punished as existing. It is not possible to interpret the "end" as included in the "written words" as it goes beyond the ordinary meaning of the language and text. In light of the above, it is reasonable to view that the act of repeatedly reaching the other party by repeatedly reaching the other party through an information and communications network includes an act of reaching the "end" by using the information and communications network, and such interpretation does not constitute a violation of the principle of clarity of penal provisions or an extension or analogical interpretation prohibited by the principle of no punishment without law.

[3] The case holding that the act of repeatedly delivering the victim's words or voice messages causing fears or apprehensions through the victim's cell phone at least seven times constitutes a crime of violation of Article 74 (1) 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[1] Article 12(1) of the Constitution / [2] Article 65(1)3 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 8289, Jan. 26, 2007); Articles 44-7(1)3 and 74(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. / [3] Article 65(1)3 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 8289, Jan. 26, 2007); Articles 44-7(1)3 and 74(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[1] Supreme Court en banc Decision 2001Do2819 Decided February 21, 2002 (Gong2002Sang, 734) Supreme Court Decision 2002Do2363 Decided January 10, 2003 (Gong2003Sang, 663) Supreme Court Decision 2005Do6525 Decided May 12, 2006

Defendant

Prosecutor

Jeong-hee

Daegu District Court Decision 2008 Godan934, 2008 Godan1087 decided April 15, 2009

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

Although the phrase, words, sound, image, or video prohibited from circulation under Article 74(1)3 (hereinafter “instant provision”) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) should be deemed to include “the words “to put another person on telephone” or “the voice mail”, it cannot be interpreted as including “the words” under the instant provision, the judgment of the court below which acquitted the Defendant of violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., among the facts charged in the instant case, is erroneous in the misapprehension of facts or misapprehension of legal principles, which affected the conclusion of the judgment.

2. Determination

A. Summary of this part of the facts charged

At around 01:10 on June 5, 2008, the Defendant: (a) 01:10, Kimcheon-si (detailed address omitted) sent a phone to the cell phone of the victim her wife using the mobile phone, and, at around 01:13 on the same day, sent a phone to the victim, and “ .........................., with the victim’s telephone call, there is any phenomenon in the inside, ............, with the victim’s telephone call, .........., with the victim’s cell phone call, ........., with the victim’s cell phone call, .........., with the victim’s cell phone call, ........., with the victim’s cell phone call, .......... were to be sent to the victim’s cell phone call, 15 times......

B. The judgment of the court below

(1) Clearing that the phrase “end” does not correspond to “cogn, image, or image” as prescribed by the provision of this case in light of its content and nature. If so, it is problematic whether this constitutes a language or sound, and the phrase’s prior meaning merely has the meaning of “rogate or letter,” and it is difficult to see that a person’s words are included in a language or sound.

The prosecutor asserts that the phrase “written words” under the provision of this case is the expression en bloc referring to the word and writing, but such assertion is difficult to accept the instant interpretation in light of the fact that the expression “written words” is ordinarily used only with the meaning of writing.

(2) In addition, there may be an assertion that the sound in a broad sense includes human words. However, in light of the fact that the provision in this case prescribed horses and sounds as separate independent elements before it was amended by Act No. 8289 of Jan. 26, 2007, it is unreasonable to argue that the meaning of words in the expression of sound is included in the expression of sound.

(3) In addition, Article 74(1)2 of the Information and Communications Network Act prohibits the act of distributing, selling, leasing, or displaying obscene codes, words, sound, image, or motion picture in violation of Article 44-7(1)1 by stipulating that “a person who distributes, sells, lends, or openly displays obscene codes, words, sound, images, or motion pictures in violation of Article 4-7(1)1” is punished. Since the contents and nature of the expression “distribution, sale, rental, or display” cannot include words in the subject and object thereof, it is reasonable to view that the expression does not include words in the subject and object thereof.

(4) Even if the reason or purpose of the amendment of the instant provision is not to exclude a person’s speech from the subject of punishment, but to simply correct words, it is difficult to interpret the content of the instant provision alone as including words in codes, words, sound, image, or images, and the court is bound to strictly interpret and determine the language and text of the relevant legal provision as it is. This is not different because the pertinent provision requires punishment or its necessity is strong.

(5) Therefore, since this part of the facts charged does not constitute a constituent element under the provision of this case, it constitutes a crime and thus, is not guilty under the former part of Article 325 of the Criminal Procedure Act.

C. Judgment of the court below

(1) The issues of the instant case

Article 44-7(1)3 of the Information and Communications Network Act provides that “Any person shall not distribute any information that may cause fear or apprehensions to other persons repeatedly through an information and communications network, with a content that leads to reaching other persons repeatedly.” Article 74(1)3 of the same Act provides that “a person who repeatedly sends to other persons any codes, words, sound, image, or motion pictures that cause fears or apprehensions in violation of Article 44-7(1)3 shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding ten million won.” The former Information and Communications Network Act (amended by Act No. 8289 of Jan. 26, 2007; hereinafter the same shall apply) does not provide any special prohibition provision, and Article 65(1)3 of the same Act provides that “any person who repeatedly sends fear or apprehensions to other persons through an information and communications network shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding ten million won.”

The facts charged of this case revealed that the defendant repeatedly reached a victim's mobile phone that arouses fear or apprehension by exposing a phone, and that the defendant's act constitutes "a case where the victim's act reaches the other party that arouses fear or apprehension" under Article 65 (1) 3 of the former Information and Communications Network Act. However, the issue of this case is whether the defendant's act constitutes "a case where the words or sounds reach the other party" under the provision of this case after the amendment.

(2) Principle of interpreting penal provisions

A penal provision shall be strictly interpreted and applied in accordance with its language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, the interpretation of a penal provision shall not exclude a teleological interpretation in light of its legislative intent and purpose, legislative history, etc., unless it goes beyond the ordinary meaning of the text and text of the law (see, e.g., Supreme Court en banc Decision 2001Do2819, Feb. 21, 2002; Supreme Court Decision 2002Do2363, Jan. 10, 2003; Supreme Court Decision 2005Do6525, May 12, 2006).

(3) Determination

In other words, if the above amendment had been made with the intent of excluding acts that cause fears or apprehensions through an information and communications network while punishing the acts of causing fears or apprehensions through an information and communications network, or with the intent of excluding acts that may cause fears or apprehensions in the context of an act of causing fears or apprehensions, then excluding acts that may cause fears or apprehensions in the context of punishment under the former Information and Communications Network Act by using an information and communications network, the legislative intent and purpose of the provision of this case include “an act of causing fears or apprehensions,” and “an act of causing fears or apprehensions,” and “an act of causing fears or apprehensions,” and “an act of causing fears or apprehensions,” and “an act of causing fears or apprehensions,” by using an information and communications network, constitutes an act of using an information and communications network,” and thus, it is difficult to view that such act constitutes an act of using an information and communications network that may cause fears or apprehensions,” and thus, it constitutes an act of using an information and communications network.

Therefore, the judgment of the court below which acquitted the above facts charged on the ground that it is not a crime even though it should be pronounced guilty, is erroneous in the misunderstanding of legal principles, which affected the conclusion of the judgment, and the prosecutor's above assertion

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

1. Violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.;

At around 01:10 on June 5, 2008, the Defendant: (a) 01:10, Kimcheon-si (detailed address omitted) sent a phone to the cell phone of the victim her wife using the mobile phone, and, at around 01:13 on the same day, sent a phone to the victim, and “ .........................., with the victim’s telephone call, there is any phenomenon in the inside, ............, with the victim’s telephone call, .........., with the victim’s cell phone call, ........., with the victim’s cell phone call, .........., with the victim’s cell phone call, ........., with the victim’s cell phone call, .......... were to be sent to the victim’s cell phone call, 15 times......

2. Violation of the Road Traffic Act;

On December 9, 2008, the Defendant was under the influence of alcohol content of 0.09% on blood alcohol content at 0.09% on December 21:35, 2008, and at the entrance of the cultural village located in the same e.g., 58pp. 7144 from the day before the cafeteria, which is located in the e.g., the e., the e., the e., the e.

1. Defendant's legal statement;

1. Each police statement of the victim and the Nonindicted Party

1. Recording records;

1. Investigation report (record, telephone record, and telephone record);

1. A written report from an employee of an employer;

1. Relevant Article of the Act and the choice of punishment for the crime;

Article 74(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and Article 44-7(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (the distribution of information that arouses fear and apprehensions, the selection of fines), Article 150 Subparag. 1 of the Road Traffic Act, and Article 44(1) of the Road Traffic Act (the point of

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Punishment for Concurrent Crimes in Violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Lee Jong-dong (Presiding Judge)