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(영문) 서울고등법원 2013.06.04 2013노1096
성폭력범죄의처벌등에관한특례법위반(통신매체이용음란)
Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misunderstanding of legal principles that the victim, who was in an internal relationship, did not take the defendant any longer, and if sending the same letter as the crime of this case, sending the victim's correspondence would not contact the defendant, and did not commit the crime of this case for the purpose of "the purpose of inducing or meeting his own or another person's sexual desire." However, the court below found that the defendant committed the crime of this case for this purpose, which recognized that the defendant had committed the crime of this case, was erroneous in the misapprehension of legal principles as to the crime of violation of the Act on the Punishment of Sexual Crimes (obscenity using communications media), which is a crime for the purpose of "the purpose of inducing or meeting his or another person's sexual desire" as an element for establishing the crime.

B. The sentence of imprisonment (one year of imprisonment) imposed by the court below on the defendant is too unreasonable.

2. Determination

A. As to the assertion of misunderstanding of facts and misapprehension of legal principles, the term “crime of obscenity using a communications medium” under Article 12 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, which provides that “a person who has sent words, sounds, letters, pictures, images, or other things that may cause a sense of sexual shame or aversion through telephone, mail, computer, or other means of communication for the purpose of inducing or meeting his/her own or another person’s sexual desire, shall be punished, is the principal legal interest of “the right not to be exposed against an individual’s will, such as images, etc. causing a sense of sexual humiliation against his/her own or another person’s right to sexual self-determination.” The issue of whether there is “the purpose to arouse or satisfy his/her own or another person’s sexual desire” shall be determined reasonably in light of social norms by taking into account various circumstances, such as the relationship between the defendant and the victim

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