Case concerning whether the crime of violating the Act on the Punishment of Stalking Crimes (hereinafter the "Stalking Punishment Act") by failing to comply with a provisional measure is established where the defendant made phone calls so that a missed-call message, a call-blocking symbol, or the like was displayed


【Holding】

[1] Where the defendant made phone calls so that a missed-call message, a call-blocking symbol, or the like was displayed on the victim's mobile phone, whether this constitutes a violation of a provisional measure ordering the defendant "not to transmit any symbols or words to the victim's mobile phone by wire, wireless, optical, or any other electronic means," regardless of whether an actual telephone conversation took place (affirmative)

[2] Where the defendant's act of approaching the victim or making phone calls to the victim constitutes an act of stalking that makes up a stalking crime and also constitutes an act in violation of a provisional measure under Article 9(1), subparagraphs 2 and 3 of the former Act on the Punishment of Stalking Crimes, the relationship in terms of the number of offenses between "the crime of violating the same Act by committing a stalking crime" and "the crime of violating the same Act by failing to comply with a provisional measure" (= conceptual concurrence)

【Summary of Decision】

[1] When the defendant makes a phone call to the victim, a radio wave carrying the information that "the defendant wishes to have a telephone conversation with the victim" is transmitted, passes through base stations, switching equipment, and the like, and is received by the victim's mobile phone; at that point, if the victim does not answer the call, the information of the foregoing content transmitted by the defendant may be transformed and displayed on the victim's mobile phone as a missed-call message, a call-blocking symbol, or the like. Such a missed-call message, call-blocking symbol, or the like cannot be evaluated as "something that reached the victim without any act of transmission by the defendant" or "something generated by the mobile phone's own functions." It is reasonable to regard the defendant as having transmitted it by attempting a telephone conversation.

Therefore, if the defendant made phone calls so that a missed-call message, a call-blocking symbol, or the like was displayed on the victim's mobile phone, the defendant must be regarded as having violated the provisional measure ordering the defendant "not to transmit any symbols or words to the victim's mobile phone by wire, wireless, optical, or any other electronic means," regardless of whether an actual telephone conversation took place.

[2] Where the defendant's act of approaching the victim or making phone calls to the victim constitutes an act of stalking that makes up a stalking crime and also constitutes an act in violation of a provisional measure under Article 9(1), subparagraphs 2 and 3 of the former Act on the Punishment of Stalking Crimes (prior to amendment by Act No. 19518 of July 11, 2023; hereinafter the "former Stalking Punishment Act"), "the crime of violating the former Stalking Punishment Act by committing a stalking crime" and "the crime of violating the former Stalking Punishment Act by failing to comply with a provisional measure" are several crimes established by a single act in the eyes of society, and thus stand in the relationship of conceptual concurrence under Article 40 of the Criminal Act.

【Referenced Statutes】

[1] Article 2, subparagraph 1 (c) and subparagraph 2, Article 9(1), subparagraph 3, and Article 20 (see current Article 20(2)) of the former Act on the Punishment of Stalking Crimes (prior to amendment by Act No. 19518 of July 11, 2023) [2] Article 2, subparagraph 1 (c) and subparagraph 2, Article 9(1), subparagraphs 2 and 3, Article 18(1), and Article 20 (see current Article 20(2)) of the former Act on the Punishment of Stalking Crimes (prior to amendment by Act No. 19518 of July 11, 2023); Article 40 of the Criminal Act