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The Defendant is not guilty. The summary of the judgment of this case is publicly notified.
Reasons
1. On October 8, 2015, the Defendant sent video images of which gender is sexual intercourse for about 6 minutes and 15 seconds from the victim E using D’s Handphone at the Defendant’s residence located in Busan Seo-gu B and C, Busan, and around 16:01.
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.
2. Determination
A. Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that any person who sends words, sounds, letters, pictures, images, or other things that may cause a sense of sexual shame or aversion by telephone, mail, computer or any other means of communication shall be punished by imprisonment 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 a communications medium, which is subject to punishment, includes what is naturally against the victim’s will, and where there is an understanding or consent of the victim, it is reasonable to view that the aforementioned provision is excluded from the elements that constitute an element prior to discussing illegality.
Therefore, even in cases where words, sounds, letters, pictures, images, or other things (hereinafter collectively referred to as “videos, etc.”) that may cause a sense of sexual humiliation or aversion through communications media reach the other party, if it is understood by the other party, such crime cannot be deemed as established.
B. Comprehensively taking account of the following circumstances revealed by the evidence duly adopted and examined by this court, the evidence submitted by the prosecutor alone is the same as the facts charged without the victim’s understanding or consent.