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The prosecutor's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal (in fact, misunderstanding of legal principles) and the victim did not explicitly agree to the receipt by the Defendant of obscene motion pictures, such as the absence of an exchange of obscene motion pictures other than the instant motion pictures.
Therefore, even if the facts charged in this case were found guilty, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.
2. Determination
A. Around October 16, 2015, the Defendant sent video images of which gender is sexual intercourse for about 15 minutes from the victim E, using D in his/her handphone, at the Defendant’s residence located in the Busan Seo-gu B and C, on October 8, 2015.
Accordingly, the Defendant sent to the victim words, sounds, letters, pictures, images, or other things that may cause a sense of shame or aversion through telephone, mail, computer, or other means of communication with intent to arouse or satisfy his/her own or another person's sexual desire.
B. The lower court held that the act of obscenity using a communications medium under Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes includes what is naturally against the victim’s will and thus, it is presumed that the act of obscenity is not constituted if the victim’s understanding or consent is obtained even if it reaches the other party of the speech, sound, writing, picture, image, or object that may cause a sense of sexual humiliation or aversion through a communications medium. In this case, the lower court held that the crime is not established because it is excluded if the victim’s understanding or consent is obtained. In this case, “(i) the Defendant and the victim are another man who becomes aware of each other while working as an election management member of the apartment house in which they reside, and (ii) the victim was friendly at the time of the instant case
D Does the request for re-refluence, including F, will be defluored.
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