The legal interest protected by Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes / The standards for determining whether “the purpose of inducing or meeting his/her or another person’s sexual desire” exists among the elements of the crime above, and whether “sexual desire” includes a desire to obtain his/her psychological satisfaction by giving another person a sense of sexual humiliation, such as sexual humiliation or harrassment, etc. (affirmative) and whether the same applies even if such “sexual desire” is combined with the other party’s sense of decentralization (affirmative)

Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides for the punishment of “a person who sends another person any words, sounds, letters, pictures, images, or other things that may cause a sense of sexual shame or aversion (hereinafter referred to as “the pictures, etc.”) by telephone, mail, computer, or other means of communication with intent to arouse or satisfy his/her own or another person’s sexual desire.” The purpose of Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is to guarantee “the right not to contact any pictures, etc. that cause a sense of sexual shame against the individual’s will against the right of sexual self-determination” is to protect the right to sexual self-determination and general personal rights, to establish a sound sexual custom of society.

Whether “the purpose of inducing or meeting one’s own or another’s sexual desire” is to be determined reasonably in light of social norms by comprehensively taking into account various circumstances, such as the relationship between the Defendant and the victim, motive and background of the act, means and method of the act, content and form of the act, nature and scope of the other party,

The term “sexual desire” includes not only the desire that directly aims or assumes sexual conduct or sexual relations, but also the desire to obtain his/her psychological satisfaction by giving another person a sense of sexual humiliation, such as sexual humiliation or harrassment. In addition, such “sexual desire” is not different even if the “sexual desire” is combined with the other party’s sense of decentralization.

Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Supreme Court Decision 2016Do21389 Decided June 8, 2017 (Gong2017Ha, 1499)

Defendant

Defendant and Prosecutor

Suwon District Court Decision 2018No464 decided May 29, 2018

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

A. Points of intimidation

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is justifiable to reverse the judgment of the court of first instance that deemed that each of the above intimidation among the facts charged in this case constitutes a single comprehensive crime, and determined that only the single crime is established, on the grounds as stated in its reasoning. In so doing, the court below did not err by misapprehending the legal principles on the number of crimes, contrary to what

B. Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media)

1) Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides for the punishment of “a person who sends another person any words, sounds, letters, pictures, images, or other things that may cause a sense of sexual shame or aversion (hereinafter referred to as “the pictures, etc.”) by telephone, mail, computer, or other means of communication with intent to arouse or satisfy his/her own or other person’s sexual desire.” The term “obscenity crime using communications media” under Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is to guarantee “the right not to contact any pictures, etc. that may cause a sense of sexual humiliation against his/her individual’s will,” thereby protecting the right to sexual self-determination and general personal rights, establishing a sound sexual morals of society.”

Whether “the purpose of inducing or meeting one’s own or another’s sexual desire” is to be determined reasonably in light of social norms by comprehensively taking into account various circumstances, such as the relationship between the Defendant and the victim, motive and background of the act, means and method of the act, details and mode of the act, nature and scope of the other party, etc. (see Supreme Court Decision 2016Do21389, Jun. 8, 2017).

The term “sexual desire” includes not only the desire for a sexual act or sexual relation, but also the desire to obtain his/her psychological satisfaction by giving another person a sense of sexual humiliation, such as sexual humiliation or harrassment, etc. In addition, even if such “sexual desire” is combined with the other party’s sense of decentralization, it does not change.

2) Review of the reasoning of the lower judgment and the record reveals the following facts and circumstances.

가) 피고인과 피해자는 2017. 5.경부터 연인관계를 유지하여 왔으나, 피해자가 피고인으로부터 빌린 돈을 갚지 않은 것이 원인이 되어 사이가 틀어지게 되었고, 사이가 틀어진 후인 2017. 7. 10.경 다시 만나 모텔에서 하룻밤을 보내고 처음으로 성관계를 갖게 되었다.

B) Following the victim’s sexual intercourse with the victim, the Defendant stated that “I am to the end of the week that I am to undergo an operation on the part of I am to the end of the week,” and that “I am to the victim who is more sexually sexually sexually sexually than I am to the end of the week, I am to the end of the year and six months,” and the Defendant declared a certain distinction by decision.

다) 이후 피고인은 2017. 7. 14.경부터 2017. 8. 6.경까지 원심판결 별지 범죄일람표2 기재와 같이 총 22회에 걸쳐 피해자의 성기가 까맣고 더러워 어떤 남자도 성관계를 원치 않을 것이라거나, 산부인과에 가서 성기 수술을 하라거나, 성기 큰 남자랑 성관계를 해서 흐뭇하겠다는 등 피해자의 성기를 비하, 조롱하고 피해자가 성적인 매력이 없다는 취지의 문자메시지를 반복하여 보냈다.

D) As to the process of repeatedly sending the above text message at the time of prosecutor’s investigation, the Defendant responded to the following purport: “The victim was informed of the fact that he was able to communicate with him with him, and that he was made a sense of shameing sexually by comparing him with other male and him; the Defendant sent the word of urging and intimidation (the point of intimidation among the facts charged in the instant case) if he was paid the money in full (the fact of intimidation among the facts charged in the instant case), and if he thought that he was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually upon the victim; and the question whether he was for sexual satisfaction.”

3) Examining these facts and circumstances in light of the legal principles as seen earlier, such as the relationship between the Defendant and the victim, the motive and background leading up to the Defendant’s above act, the means and method of the act, the content and form of the Defendant’s act, and the counterpart to the transmission of text messages, etc., even if the Defendant did not wish to have sexual intercourse with the victim, it is acknowledged that the Defendant was treated by comparison with another male and sexually with the victim, thereby causing the victim to feel sexual humiliation, such as the victim’s sexual humiliation, the victim’s sexual intercourse, and it appears that the Defendant committed the above act for the purpose of recovering the damaged sexual self-esteem at the same time with the victim’s sexual desire. Since the desire to obtain such psychological satisfaction is also included in the victim’s sexual desire, the purpose of meeting the Defendant’s sexual desire is recognized.

4) Nevertheless, the lower court reversed the first instance judgment convicting the Defendant of this part of the charges, and acquitted the Defendant on this part of the charges, on the ground that the Defendant merely appears to have sent text messages to the victim with a view to causing negative deliberation, such as humiliation, displeasure, and cardiopulmonary pain, after arranging a dynamic relationship with the victim’s mentioning the size of his/her sexual organ, and the evidence submitted by the prosecutor alone cannot be deemed to have been proven beyond reasonable doubt that the Defendant sent text messages for the purpose of inducing or satisfying his/her own or another person’s sexual desire.

5) In so determining, the lower court erred by misapprehending the legal doctrine on “the purpose of inducing or meeting one’s own or another person’s sexual desire” in the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media), thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal assigning

2. As to the Defendant’s ground of appeal

The defendant did not submit a statement of grounds for appeal within the statutory period, and there is no statement in the petition of appeal on the grounds for appeal.

3. Scope of reversal

Of the lower judgment, the part on the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media) in the lower judgment should be reversed for the same reason as seen earlier. Moreover, the remaining convictions in concurrent crimes under the former part of Article 37 of the Criminal Act should also be reversed. As such, the lower judgment

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Noh Jeong-hee (Presiding Justice)