Hello, this is Attorney Eom Sang-yun from the law firm Cheongchul.

Recently, the Supreme Court overturned the original ruling, which acquitted the defendant in a case where the perpetrator transferred 1 won to the victim's bank account and used the 'remittance memo' function to leave obscene messages. This reaffirmed the scope of the crime of obscenity using communication media (2025Do12709).

Beyond simple harassment, if the content of the remittance memo were to induce sexual shame, what crime would it fall under? A meaningful Supreme Court ruling was issued regarding this new type of crime occurring alongside the popularization of mobile banking. Today, we will explore the elements of establishing the crime of obscenity using communication media and the practical implications of this ruling based on the Supreme Court's ruling 2025Do12709.

[Overview of the Case and Issues]

The defendant in this case attempted to contact the victim, but when unsuccessful, used their mobile phone to transfer 1 won to the victim's bank account. The defendant utilized the so-called 'remittance memo' function offered by fintech apps or mobile banking during the transfer process.

For the purpose of inducing or satisfying their own or another person's sexual desire, the defendant wrote a message in the memo field that caused sexual shame or disgust and made sure it reached the victim. Consequently, the prosecution argued that the defendant's actions fell under Article 13 of the 'Act on Special Cases Concerning the Punishment of Sexual Violence Crimes' (hereinafter referred to as the 'Sexual Violence Punishment Act') regarding the crime of obscenity using communication media.

The key issue in this matter is whether the remittance memo function of the banking app qualifies as a communication medium as defined by the Sexual Violence Punishment Act.

[Requirements for Establishing the Crime of Obscenity Using Communication Media]

Article 13 of the Sexual Violence Punishment Act (obscene acts using communication media) stipulates that the person who 'causes sexual shame or disgust via words, sounds, writing, pictures, videos, or objects transmitted through telephone, mail, computer, or other communication media for the purpose of inducing or satisfying their own or another person's sexual desire' shall be punished. To establish the crime of obscenity using communication media (so-called 'tongmaeum'), the following three requirements must be met.

1)    The actor must have a sexual purpose. The Supreme Court precedent interprets this 'purpose' broadly not only as seeking one's own sexual pleasure but also including the intent to inflict sexual shame and suffering on the other person to achieve psychological satisfaction, even if anger or revenge feelings are involved.

2)    The wording of Article 13 of the Sexual Violence Punishment Act cites telephone, mail, and computer as examples and includes a broad provision of 'other communication media.' This is distinguished from cases where the perpetrator directly engages in obscene words or actions in front of the victim (separate crimes such as forcible molestation or insult) and reflects the specific nature of crimes involving sexual violations conducted in a non-face-to-face manner through communication networks.

3)    The content causing sexual shame or disgust must reach the other person. Here, 'reach' is recognized simply by placing the other person in a state where they can objectively be aware of it, regardless of whether or not they have actually read the content. This is because the protected legal interest of this crime is the 'right not to be exposed to writings that cause sexual shame against one's will.'

[Original Ruling and Supreme Court Judgment]

The original court ruled that (i) the remittance memo does not have the function of bidirectional information transmission, unlike a messenger, (ii) the original purpose is merely a 'subsidiary function' for identifying and managing transaction records, and (iii) the messages written do not go directly to the victim but are first delivered to the bank system, concluding that it does not fall under the communication media defined by the Sexual Violence Punishment Act.

In contrast, the Supreme Court defined communication mediums as "objects or means that generally transmit information or intent" and ruled that it is not necessary for communication to be recognized as a communication medium solely based on the ability for both parties to exchange information (interactivity), thus overturning the original ruling.

The 'remittance memo' in electronic financial transactions is used to briefly display the information the remitter wants in the account or transaction details of the recipient while transferring funds. Therefore, it essentially serves as 'a means of transmitting information to the person receiving the deposit.' As a result, if obscene writings were transmitted through this means, it would satisfy the criteria for constituting a crime, according to the Supreme Court's stance.

[Practical Implications of This Ruling]

This Supreme Court ruling is evaluated as a reasonable interpretation of criminal norms in line with the rapidly changing digital financial environment and advancements in IT technology. If the original court's logic had narrowly emphasized 'interactivity' or the primary purpose of financial transactions to deny communication media status, then even if a perpetrator cleverly circumvented a victim's contact block to use the remittance functions of fintech apps or second-hand trading platforms to send messages causing sexual shame, it would not have been punishable under current laws.

This ruling serves as a precedent indicating that the scope of 'communication media' under the Sexual Violence Punishment Act can be judged based on the actual potential for information transmission, regardless of the platform's original intended use (finance, shopping, etc.). Furthermore, the existing criminal practice has been treating acts of misusing remittance functions to send unsolicited messages while being blocked from contacting the other person as a violation of the 'Act on the Punishment of Stalking Crimes.' However, it is expected that moving forward, the Sexual Violence Punishment Act will be applied more proactively in cases involving content that could cause sexual shame or disgust.

Meanwhile, various platform operators in fintech, e-commerce, and other fields should proactively check whether simple text input functions (memos, gifting messages, etc.) within their services could be misused as tools for crime and strengthen technical and policy measures for user protection, such as harmful word filtering.

The law firm Cheongchul is successfully responding to criminal cases based on the expertise and experience accumulated through cooperation with major domestic law firms such as Kim Jang Law Office, Taepyeongyang, Gwangjang, Sejong, and Yulchon. Partnering with Cheongchul will ensure a reliable ally in accurately grasping the essence of the case and effectively conveying the client’s position.