2020No863 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media)

A

Defendant

Park Jae-young (prosecution), Park Jae-ho (Public trial)

Law Firm, Law Firm Professor

[Defendant-Appellant]

Suwon District Court Decision 2020Gohap8 Decided April 9, 2020

September 10, 2020

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment shall be published.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

It was true that the defendant sent the victim the same message as stated in the facts charged of this case, but the above message was not sent to a sexual sense, but did not aim to arouse or satisfy the defendant's sexual desire.

(b) Sentencing (a fine of two million won is imposed);

2. Judgment on misconception of facts or misapprehension of legal principles

A. Facts charged

On January 18, 2019, the Defendant sent a message to the victim F (F) who used the same game using a hosting hold in the game, “for example, 28 years of age, ID: G”, “for example, 1 year of age,” and “B”, which is the Defendant’s residence, connected the Defendant’s online game to “D” by using the Defendant’s computer.

As a result, the Defendant sent to the victim a letter that may cause sexual humiliation or aversion through a computer, which is a communication medium, with a view to inducing or satisfying his or another person's sexual desire.

B. The judgment of the court below

The lower court convicted the Defendant of all the charges on the ground that it is recognized that the Defendant sent the message for the purpose of obtaining his/her psychological satisfaction by giving a sense of sexual humiliation, such as sexual humiliation or harrassment, etc., on the ground that it is recognized that the Defendant sent the message.

C. Judgment of the court below

1) Relevant legal principles

Article 13 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes guarantees "the right not to contact with pictures, etc. that cause a sense of sexual shame against an individual's will against the right to sexual self-determination." The protection of sexual self-determination and the protection of general personal rights, and the establishment of sound sexual morals in society is protected.

Whether “the purpose of causing or meeting one’s own or another’s sexual desire” is to be determined reasonably in light of social norms by 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 form of the act, and nature and extent of the other party, etc. In addition, “the act of causing a sexual humiliation or aversion” refers to the act of causing the victim to feel a sense of shame or insult as a human being beyond simple disreshing or displeasure, or causing the victim to feel a sense of sense of shame or insult, and contrary to the concept of social average person’s sexual desire. Whether such sexual humiliation or aversion may be induced should be determined on the basis of the general and average person. In particular, in the case of a sexual humiliation, it should be determined on the basis of the general and average person of the same gender and age group as the victim (see, e.g., Supreme Court Decision 2016Do21389, Jun. 8, 2017).

2) Determination

In addition, the phrase prepared by the defendant itself does not fit the victim, but it is difficult to confirm that there was sexual meaning under Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes beyond the above meaning, in light of the following circumstances.

(1) The circumstances why the defendant and the victim have engaged in hosting.

The Defendant served as the same team as the victim before sending the instant message to the victim, and continued to play the game, but the victim went to a group where the Defendant and the game were the Defendant without any speech. Since then, the Defendant continued to play the game, and became the victim again to a counter team.

(2) Details of conversation.

In other words, dialogues between the defendant, victims, and the defendant's friendships is classified into the following, and the bottom part is indicated as sexually meaningful message in the facts charged in this case.

(생략)[피해자] 잠깐만[피고인의 친구] F 친구[피고인의 친구] ㄱㄱ함 (go go 함, 시작하자)[피고인] 박아주게 (박아줄게)[피고인] 쌍1년 (욕설을 입력하는 것이 금지되어 있어 욕설 가운데에 "1"을 삽입)[피해자] 이 게임하고 나갈게 나 저분(피고인) 고소해야 됨[피고인] 지렸어[OOO] ㅋㅋㅋㅋㅋㅋㅋㅋㅋㅋㅋ[피고인의 친구] 거칠어[피고인] 왜 우리한테서[피고인] 도망가요.[피고인] 서운하게(생략)

(3) Determination in light of the standards for the same gender and age-based game.

The victim is the 20th female's 20th women, therefore, it should be determined at the level of general and average expression used by the same age group gamezers.

(a) First, I examine the meaning of "gambling".

The game made by the Defendant and the victim is the kind of Scing Game that attacked with the launch arms such as the “D.” The Defendant’s “Scambling game” means the Defendant’s speech that the Defendant started the game, and it is difficult to avoid the possibility that the Defendant used the message to the other team (victim) in the sense that the Defendant’s speech was frightening to the general public. This is true even in the context where the Defendant had a conversation with the victim with the sexual meaning (as seen in the front and rear, it is difficult to view the message as a message with sexual meaning).

(b)The following shall be regarded as one year:

A two-years are originally referred to as a "a fluent woman", but they do not necessarily include sexual meaning, although they are expressed in low-speed and lower-party.

(c)Finally, I see the “satis”;

'지렸어'의 '지린다'는 본래 '똥이나 오줌을 참지 못하고 조금 싸다'는 뜻이지만, 최근에는 '똥이나 오줌을 지릴 정도로 대단하다. 무섭다'는 뜻의 비속어로 사용된다. 피고인의 위 메시지는 피해자가 피고인을 욕설 등으로 고소한다고 말한 바로 다음에 나온 것이고, 피고인이 그 뒤에 피해자에게 존댓말로 '서운하게 왜 우리한테서 도망가느냐'고 메시지를 보낸 것으로 보아, '고소한다'고 말한 피해자에게 '오줌을 지릴 정도로 깜짝 놀랐다'는 의미로 사용한 것으로 보인다.

3. Conclusion

Thus, the defendant's appeal is reasonable, and the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the argument of unfair sentencing, and the following decision is rendered after oral argument.

[Grounds for multi-use Judgment]

The summary of the facts charged of this case is identical to that of 2.A. (a) and this constitutes a case where there is no proof of facts constituting a crime by the prosecutor as stated in 2.C. (c) and thus, the judgment of innocence is rendered under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is to be publicly notified under Article 58(2) of the Criminal Act. It

Judges Oh Sung-won

Judges Kim Jin-young

Judges Choi-hee-dong