Defendant

Defendant

Kim U.S. (Lawsuits) and courtrooms (trials)

Attorney Kang Jin-tae (Korean National Assembly)

Seoul Northern District Court Decision 2018Gohap277 Decided April 19, 2018

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

1) The violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection (hereinafter “Violation of Information and Communications Network Act”) does not simply mean that the act constitutes one-time or influencious shortness, i.e., an act of causing fear or apprehensions, not an act of causing inconvenience to the addressee. The Defendant did not have any intent to arouse fear or apprehensions, and the Defendant’s act does not constitute a case where the Defendant’s act repeatedly reached the language causing apprehensions.

In addition, the text messages sent by the Defendant are all printed and processed, and the text messages sent by the Defendant are not 261 times but 236 times, unlike written in the list of crimes. It is “bals” to cause the addressee to be aware of it. The text messages sent by the Defendant, which did not receive from the recipient, cannot cause apprehensions by reaching the victim.

Therefore, the Defendant does not constitute an offense under Article 74(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and the lower court found the Defendant guilty of violating the Information and Communications Network Act.

2) In light of the record on August 1, 2017, the victim did not clearly request the victim to contact with the defendant, that is, there was no explicit expression of the victim’s explicit intent, and even in nives of nives, the Defendant was aware of the nives of the Defendant. In addition, the Defendant sent letters to the victim, and there was no circumstance that the Defendant requested a meeting or an agenda.

Therefore, even though the defendant did not constitute an offense under Article 3(1)41 of the Punishment of Minor Offenses Act, the court below found the defendant guilty.

B. Unreasonable sentencing

The punishment of the court below (2 million won of fine) is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles

1) First, we examine the violation of the Information and Communications Network Act.

Comprehensively taking account of the evidence duly admitted and examined by the lower court, the fact that the Defendant was aware that the victim did not want to contact and receive text messages from the Defendant, but sent unilaterally text messages over a total of 236 times during the period from August 2, 2017 to August 5, 2017 can be acknowledged that: (a) considerable of the content of text messages would like to associate with the victim regardless of the victim’s intention; (b) all of the contents of text messages would mislead the Defendant and forcibly interfere with the victim; and (c) would harm the victim and its surroundings who did not respond to the Defendant’s contact.

Meanwhile, Article 74(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. punishs “a person who has repeatedly sent words causing fear or apprehension to the other party through an information and communications network.” In this context, “an intentional delivery” refers to a case in which the other party is in an objective state where the details of notification can be known through an information and communications network. As such, even if the other party refuses to receive notification, it is reasonable to interpret that the other party has reached the above law when the other party is in an objective state where the details of notification can be known. This is because interpreting that where the text causing fear or apprehensions are transmitted repeatedly to the other party by electronic means, it cannot be said that the other party has actually arrived at all of the contents of the notification in order to create an environment in which the information and communications network can be used in a sound and safe manner. In addition, the above law constitutes a crime by repeatedly reaching the other party, which constitutes a violation of the law by allowing the other party to receive notification through an information and communications network, and it cannot be recognized that the Defendant is actually aware of the content of the above law.

Therefore, as long as the defendant repeatedly transmitted the above text message in the same way and the victim can confirm it, the above legal arrival has reached, and the intent of the above legal violation should be recognized.

2) Next, we examine the violation of the Punishment of Minor Offenses Act.

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, i.e., that the Defendant and the victim did not seem to have a friendly relationship with the Defendant, and the victim requested the Defendant to not contact on August 1, 2017, and the Defendant continued to attempt to find out the Defendant’s information by making phone call to the Defendant working for the Defendant, and the Defendant sent an unilateral text message over 236 times during five days thereafter, and the content of the text message wanting to talk with the victim who does not want to talk, directly or against the Defendant, or by going against the express will of the victim, it can be recognized that the Defendant committed an act of demanding interview or debate by continuously attempting to talk against the victim’s explicit intention, such as sending the text message, as indicated in the facts charged.

3) Therefore, the Defendant’s assertion of mistake and misapprehension of legal principles is without merit.

B. As to the assertion of unfair sentencing

The lower court appears to have already determined a sentence by taking into account the circumstances favorable to the Defendant, and there are no special circumstances to consider additional punishment in the trial. Therefore, the Defendant’s assertion of unreasonable sentencing is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition (However, since it is obvious that "261 times" as stated in subparagraph 5 of the second sentence of the judgment below is a clerical error of "236 times", it shall be corrected as ex officio dismissal in accordance with Article 25 (1) of the Rules on Criminal Procedure.

Judges Park Jong-sik (Presiding Judge) Kim Lee-sung