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헌재 2018. 6. 28. 선고 2016헌가15 판례집 [아동·청소년의 성보호에 관한 법률 제17조 제1항 위헌제청]

[판례집30권 1집 350~369] [전원재판부]

Main Issues

1. Whether Article 17(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012; hereinafter “Article 17(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse”) which punish a person who fails to take measures prescribed by Presidential Decree to detect child or juvenile pornography in the information and communications network managed by him/her (hereinafter “Duty of discovery”) or to immediately delete discovered child or juvenile pornography and fails to take technical measures to prevent or block transmission (hereinafter “measures to prevent deletion and transmission”), violates the principle of prohibition of comprehensive delegation (negative)

2. Whether the part concerning the measures to prevent deletion and transmission in the provisions subject to adjudication violates the principle of clarity in the principle of no punishment without law (negative)

3. Whether a provision subject to adjudication violates the excessive prohibition principle, thus infringing on the freedom of business of an online service provider, the secrecy of communications of service users and the freedom of expression (negative)

Summary of Decision

1. The specific method of the measure taken by an online service provider to detect child pornography in an information and communications network is recognized as having a professional, technical, specific and detailed need to be delegated to subordinate statutes. On the other hand, the scope of “online service provider”, which is the recipient of the provision subject to adjudication, is clearly defined in the law phase, and the Presidential Decree regarding the duty of discovery can sufficiently be predicted that the measures to detect child pornography by the online service provider through the name of the data transmitted directly through the information and communications network, etc., and the measures to receive a report from the service user will be taken. Therefore, the part concerning the duty of discovery in the provision

It does not contravene the principle of prohibition of delegation.

2. On the other hand, an online service provider shall take measures to immediately delete and prevent further transmission of the data revealed as child pornography. In relation to the part regarding “Immediate deletion,” an online service provider should take measures to prevent the removal of the data at a location in which the relevant child pornography was stored and from getting off or reproducing them by other users, and in relation to the part regarding “prevention or suspension of transmission,” measures should be taken to prevent the relevant child pornography from being placed in the status of other users by preventing the movement of data in a way suitable for the type of service that he/she provides. Therefore, the part concerning measures to prevent deletion and transmission in the provision subject to adjudication can anticipate what the act of any online service provider is prohibited and punished, and accordingly, it does not violate the principle of clarity.

3.The provisions subject to adjudication shall restrict the freedom of occupation and occupation of online service providers, in detail, the freedom of conduct of business, and shall restrict the confidentiality of telecommunications of service users and the freedom of expression.

The legislative purpose of the provision that intends to protect children and juveniles from sexual crimes is justifiable by punishing acts of assisting or neglecting the distribution of child pornography directly or indirectly by providing information and communications network, etc. The purpose of the provision is to prevent the distribution of child pornography in the information and communications network, and thereby protect them from sexual crimes. Since the harmful effects of the provision is particularly serious child pornography, it cannot be readily concluded that excessive restriction on the freedom of business is difficult to readily conclude that the online service provider excessively restricts the freedom of business inasmuch as the proviso of the provision provides exceptions to punishment. As such, the proviso of the provision provides for the exception of punishment, the online service provider does not have the duty to detect the child pornography in the service provided by the online service provider or to take measures that can completely block the distribution of child pornography by exceeding the technical limit. Since given the characteristics of the child pornography, it is difficult to prevent the infringement of the human rights of the related children and juveniles after the spread of the materials already spread, and if the online service provider does not preemptively respond to the spread of the child pornography, it cannot effectively cope with the spread of the child pornography.

It is necessary to impose positive duties on the Switzerland, and the legislators impose such positive duties on the online service provider and respond to punishment may not exceed the limit of legislative discretion. Through a clause subject to adjudication, the wide range of distribution and proliferation of child pornography can be prevented in advance, thereby preventing various harms that may result in child pornography, and in particular, the possibility of infringement on the human rights of related children and juveniles is greater than that of private disadvantages. Accordingly, the provision subject to adjudication does not infringe on the freedom of business of the online service provider, the secrecy of communications of service users, and the freedom of expression.

Documents subject to adjudication;

Article 17 (Duties of Online Service Providers) (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012) (1) Any online service provider who fails to take measures prescribed by Presidential Decree to detect child or juvenile pornography in an information and communications network managed by him/her, or who fails to immediately delete any discovered child or juvenile pornography and take technical measures to prevent or block transmission thereof, shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 20 million won: Provided, That the same shall not apply where an online service provider has not been negligent in paying due attention to detecting child or juvenile pornography in an information and communications network, or where it is technically difficult even though he/she intended to prevent or block transmission of

(2) omitted.

[Reference Provisions]

Articles 12(1), 13(1), 15, 18, 21, 37(2), and 75 of the Constitution of the Republic of Korea

Article 41 of the Constitutional Court Act

The definitions of terms used in this Act are as follows, Article 2 (Definitions) of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012).

1.-3. Omitted.

4. The term "act of purchasing sex of a child or youth" means doing any of the following acts against a child or youth or compelling a child or youth to do such act, in return for offering or promising to offer money or goods, other property benefits, services, convenience, etc. to a person arranging the purchase of sex of a child or youth, or a person who actually protects and supervises the child or youth, or a person who actually protects and supervises the child or youth:

(a) Sexual intercourse;

(b) Similar sexual intercourse using part of the body, such as the mouth and anus, or implements;

(c)any act of contact and exposing all or part of the body, which causes sexual humiliation or aversion of ordinary people;

(d) Self-defense;

5.The term "child or youth pornography" means the appearance of children, juveniles, or persons or representations that can be clearly perceived as children or juveniles, doing any act set forth in any of subparagraph 4 or engaging in any other sexual act in the form of a film, video, game software, or picture, image, etc. displayed on computers or other communications media;

6.-7. Omitted

8. The term "online service provider" means a person prescribed by Presidential Decree, who provides services so that other persons may use online data through an information and communications network (referring to an information and communications network defined in Article 2 (1) 1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.; hereinafter

9. Omitted.

The definitions of terms used in this Act (Definitions) Article 2 of the Telecommunications Business Act (Amended by Act No. 10166, Mar. 22, 2010) are as follows:

1. Omitted;

2.The term "telecommunications equipment and facilities" means machinery, appliances, lines or other facilities necessary for telecommunications;

3.-7. Omitted

8. The term "telecommunications business operator" means an entity that provides telecommunications services upon obtaining a license, or completing registration or reporting (including exemption from reporting) under this Act;

9.-12. Omitted

Article 5 (Classification, etc. of Telecommunications Business) (1) of the Telecommunications Business Act (Amended by Act No. 10166, Mar. 22, 2010) (1) shall be classified into key communications business, special category telecommunications business, and value-added

(2) The key communications business shall be a business which installs telecommunications line equipment and facilities, and provides the key communications services by using such telecommunications line equipment and facilities.

(3) The special category telecommunications business shall be as follows:

1. A project that provides key communications services by using telecommunications line facilities, etc. of a person who has obtained a license for key communications business under Article 6 (hereinafter referred to as "key communications business operator");

2. Business that installs telecommunications equipment and facilities in the premises prescribed by Presidential Decree, or provides telecommunications services therein by using such equipment and facilities.

(4) The value-added telecommunications business shall be a business providing value-added telecommunications services.

Article 2 (Definitions) (1) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 10166, Mar. 22, 2010) (1) The definitions of terms used in this Act are as follows:

1. The term "information and communications network" means an information and communications system for collecting, processing, storing, searching, transmitting or receiving information by using telecommunications facilities and equipment under subparagraph 2 of Article 2 of the Telecommunications Business Act or by using telecommunications facilities and equipment, computers and computer technologies;

2. Omission;

3. The term "information and communications service provider" means a telecommunications business operator under subparagraph 8 of Article 2 of the Telecommunications Business Act and a person who provides or arranges the provision of information using telecommunications services by a telecommunications business operator

4. to 12. Omitted

(2) omitted.

"Persons prescribed by Presidential Decree" in subparagraph 8 of Article 2 of the Enforcement Decree of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Presidential Decree No. 24567, May 31, 2013) and Article 2 subparagraph 8 of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter referred to as the "Act") means information and communications service providers under Article 2 (1) 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

(1) "Measures prescribed by Presidential Decree" in the main sentence of Article 17 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Presidential Decree No. 24567, May 31, 2013) means all of the following measures: Provided, That where it is possible to detect child or juvenile pornography by taking measures prescribed by other Acts, all or part of the following measures may be omitted:

1. Measures that enable an online service provider to report on a regular basis, where a user discovers online data suspected as child or juvenile pornography;

2. Measures to find out data technically perceived as child or juvenile pornography by analyzing the characteristics or titles of online data;

(2) An online service provider may request the Korea Communications Commission under Article 18 of the Act on the Establishment and Operation of Korea Communications Commission to deliberate on online data difficult to determine as child or juvenile pornography.

(3) The Minister of Gender Equality and Family may provide administrative support necessary for online service providers to take measures, such as discovering and deleting child or juvenile pornography, and may establish a cooperative system with online service providers, related institutions and organizations.

Reference Cases

1. Constitutional Court Decision 10-1, 187, 194-1, 194-1, 194-195 Hun-Ba5 Hun-Ba5 on February 27, 1998; Supreme Court Decision 14-1, 478, 486-487 Hun-Ba on May 30, 202; Supreme Court Decision 2009Hun-Ba38 on February 25, 2010; Supreme Court Decision 22-1, 275, 290 Hun-Ma416 on July 30, 2015; Supreme Court Decision 27-2, 159, 166 Hun-Ba on September 28, 2017; Supreme Court Decision 2009Hun-Ba38 on February 25, 2010; Supreme Court Decision 2013Hun-Ba416 on July 30, 2015;

2. Constitutional Court Decision 12-1, 741, 748 decided June 29, 200; 98Hun-Ga10 decided June 29, 200;

3. Constitutional Court Decision 4, 225, 229HunBa16, May 27, 1999; Supreme Court Decision 11-1, 529, 538-539Hun-Ba80, Jun. 29, 2006; Supreme Court Decision 18-1Hamba80, Jun. 29, 2006; Supreme Court Decision 18-1Hamba24, 225, 229Hun-Ba16, 206

Constitutional Court Decision 19-2, 535, 540Hun-Ga17, Jun. 25, 2015; 27-1Han, 402, 416-418, 2006Hun-Ga13, Supreme Court Decision 2006Hun-Ga13, Nov. 29, 2007; 19-2, 540Hun-Ga17, etc.

Parties

Cheongju District Court Cheongwon District Court Manam branch

The violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Provision of obscenity Online Services)

Text

Article 17 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012) shall not violate the Constitution.

Reasons

1. Summary of the case;

A. The Defendant Lee ○-soo in the instant case is a person who served as the representative director of ○○○ Company from November 11, 2011 to September 30, 2014. Under the Act on the Protection of Children and Juveniles against Sexual Abuse, ○○ Co., Ltd., “○○” constitutes “online service provider providing services so that other persons may use online data through an information and communications network (Article 2 subparag. 8).” The online service provider is obligated to take the “measures prescribed by Presidential Decree to detect child or youth pornography” and “technical measures to immediately delete discovered child or youth pornography and prevent or block transmission” at the information and communications network managed by himself/herself pursuant to Article 17(1) of the said Act.

B. This was charged on November 4, 2015 with the charge that ○○○ does not take such measures as above, and from June 14, 2014 to August 12, 2014, 7,115 within 15 to 7,115 within the “○○ Group”, a service managed by ○○○○ Co., Ltd., from around June 14, 2014 to 7,15 to 745 children and juvenile pornography were offered, distributed, and openly displayed (Usu District Court 2015Dadan2430). The court requested ex officio a ruling on the unconstitutionality of Article 17(1) of the above Act applied to the above facts charged on August 19, 2016.

2. Object of adjudication;

Article 17(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012) (hereinafter “Article 17(1)”).

Whether it is in violation of the Constitution or not. The provisions to be tried are as follows, and related provisions are as follows.

【Provisions Subject to Adjudication】

The Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012)

Article 17 (Obligations of Online Service Providers) (1) Any online service provider who fails to take measures prescribed by Presidential Decree to detect child or juvenile pornography in the information and communications network managed by himself/herself, or who fails to immediately delete the detected child or juvenile pornography and take technical measures to prevent or block transmission thereof, shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 20 million won: Provided, That this shall not apply where the online service provider has not neglected to pay due attention to detect the child or juvenile pornography in the information and communications network, or where it is remarkably difficult technically even though he/she intended to prevent or block the transmission of the detected

3. Reasons for requesting a court to adjudicate on the constitutionality of statutes;

The scope of “online service provider” and the scope of services provided by online service providers using information and communications networks are excessively wide, and the contents of measures to be taken by online service providers are not clear, and are comprehensively delegated to Enforcement Decree. “On-line service providers” are merely intermediaries of information distribution. It is more reasonable to punish online service providers even if they are actively engaged in the distribution of obscene materials using children and juveniles or do not encourage the distribution of obscene materials. Furthermore, the scope of online service users’ communications can be limited and supervised under the pretext of discovering the distribution of obscene materials using children and juveniles.

In full view of these facts, the clause subject to adjudication violates the excessive prohibition principle and infringes on the freedom of occupation of online service providers and the freedom of communication of online service users (hereinafter “service users”) and the freedom of expression, and there is a risk that punishment may be decided by arbitrary interpretation of executive organs and judges, and thus, is also in violation of the principle of no punishment without law.

4. Determination

(a) Details of Article subject to adjudication;

(1) A person who commits a crime subject to an adjudication;

The obligation prescribed in the provisions subject to adjudication shall be borne by an online service provider. An online service provider shall be “online service provider”.

A person who provides online data through an information and communications network as defined in Article 2 (1) 1 of the Act [Article 2 subparagraph 8 of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection”), ① a telecommunications business operator, such as a key telecommunications business operator, specific telecommunications business operator, value-added telecommunications business operator who provides telecommunications services after obtaining permission, making registration, or making a report under Telecommunications Business Act, and ② a person who provides or arranges the provision of information using telecommunications services by a telecommunications business operator for profit-making purposes (see Article 2 of the Enforcement Decree of the Juvenile Sex Protection Act; Article 2 (1) 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.).

(2) Obligations under subsection (2) of the subject matter of adjudication.

(A) Article 15(1) of the Information and Communications Network Act (hereinafter “Information and Communications Network Act”) provides that online service providers shall take measures prescribed by Presidential Decree to detect obscene materials for children or juveniles, (2) immediately delete discovered children or juveniles’ obscene materials, and take technical measures to prevent or block transmission, and shall be punished if such measures are not taken.

(B) obscenity for children or juveniles (hereinafter “child pornography”) refers to the appearing of children or juveniles, or persons or representations that can be clearly perceived as children or juveniles, and expression of sexual intercourses, similar sexual intercourses, physical contact with and exposure to persons that may cause a sense of sexual shame or aversion, acts of self-defense, or other sexual acts, which are in the form of pictures, videos, game software, or images or videos, etc. through computers or other communications media (Article 2 subparag. 4 and 5 of the Juvenile Sex Protection Act). “Persons who may be perceived as children or juveniles” means those cases where people appear to be sufficiently perceived as children or juveniles from the standpoint of ordinary people, and even the part “reliable representations that may be perceived as children or juveniles” also refers to those cases where persons appear, which are likely to cause a sex offense against children or juveniles, as they contain sufficient sexual impulses against children or juveniles, and are limited to those likely to cause a sex offense against children or juveniles (see, e.g., Constitutional Court Decision 2015Hun-Ga35, Jun. 13, 2015).

(c)To find child pornography, the measures prescribed by Presidential Decree (hereinafter referred to as "Duty of discovery") shall be considered to be taken. An online service provider shall: (i) to enable a user to make a full-time report if he/she finds online materials suspected of being child pornography (Article 3(1)1 of the Enforcement Decree of the Juvenile Sex Protection Act, hereinafter referred to as "measures to receive a report") and (ii) to analyze the characteristics or titles of online materials technically and technically as child pornography.

The measures to identify recognized materials (Article 3 (1) 2 of the Enforcement Decree of the same Act; hereinafter referred to as "technical measures for identification") shall be taken: Provided, That the Enforcement Decree provides that if a child pornography can be discovered by taking the measures prescribed by other Acts, all or part of the measures may not be taken (proviso of Article 3 (1)).

How the technical measures for the receipt of reports or recognition purposes are specifically applied are at the discretion of online service providers. In general, online service providers are receiving reports from service users on “information with the content of distributing, selling, leasing, or openly displaying obscene codes, words, sound, images, or images” (hereinafter “illegal obscene information”), such as child pornography, etc. In addition, with respect to technical measures for recognition purposes, regarding the technology for blocking the search and transmission of specific data, such as illegal obscene information (hereinafter “illegally obscene recognition technology”), or the data determined to contain already illegal information, which has been converted from a short length of data depending on a certain number of pages, or the data derived from the unique characteristics of the data, are consistently applying the technological improvement, etc. of the technology by comparing the data derived from DNA list (hereinafter “ohh’s perception”).

(d)The technical measures to immediately delete detected child pornography and prevent or block transmission to other users from being made available (hereinafter referred to as "measures to prevent deletion and transmission") are also left at the discretion of the online service provider. However, as long as the online service provider has discovered illegal obscene information, such as child pornography, it would be technically difficult to prevent and block the transmission thereof.

(3) Grounds for exemption from the section

The specific method of application of the measures in accordance with the provision to be tried is left to the online service provider. Among them, the measures to determine that certain material constitutes illegal obscene information, such as child pornography, that is, the technical measures for recognition purposes, are insufficient to determine whether the technology widely applied at present falls under the illegal obscene information in full and there is a possibility of errors or omissions.

In consideration of the proviso to Article 14 (1) of the Information and Communications Network Act, where considerable attention has not been neglected to detect child pornography in an information and communications network, or where technical difficulty is considerably difficult even though it was intended to prevent or block transmission of discovered child pornography.

The exception provides that no punishment shall be imposed.

B. Whether the part concerning the discovery duty of the article subject to adjudication contravenes the principle of prohibition of comprehensive delegation

(1) In a case where the clarity of a penal provision simply delegates part of the elements of a penal provision, the principle of prohibition of comprehensive delegation pursuant to Article 75 of the Constitution and the principle of clarity derived from the principle of no punishment without law (see, e.g., Supreme Court Decision 2001HunBa5, May 30, 2002) are concurrent (see, e.g., Supreme Court Decision 2001HunBa5, May 30, 2002). However, the constitutionality of a penal provision should be determined on the basis of whether the penal provision complies with the limit of delegated legislation, but the standard of necessity and predictability of delegation permissible by the Constitution, considering the purport that the penal provision provides for the principle of no punishment without law, must be strictly applied (see, e.g., Constitutional Court Decision 2013HunBa41

Article 75 of the Constitution provides that "The President may issue Presidential Decrees with regard to the matters delegated specifically by Act and matters necessary for enforcing the Act." This means that, if the Act specifically provides for the basic matters of the contents and scope which are already prescribed by Presidential Decree, any person, who may be provided for by Presidential Decree, shall be able to predict the major principles of the Act in question.

The scope of the above specification or predictability of delegated legislation is different depending on the type and nature of the subject of regulation. In particular, in a punishment law, etc. which is likely to directly restrict or infringe on the fundamental rights of the people, the requirements and scope of delegation should be more strictly provided. However, whether predictability exists should not be determined with only one of the relevant specific provisions, and the entire relevant provisions of the law should be systematically and systematically examined, and specific and individually, depending on the nature of the subject law (see Constitutional Court Decision 97Hun-Ma64, Feb. 27, 1998).

(2) Since online service providers expand the scope of online service providers and diverse types of services provided by them, there are various technical measures to discover specific information, such as child pornography, in the telecommunications network managed by them. Moreover, the method of transmitting information through an information and communications network is developing very rapidly, and technical measures to discover specific information distributed through an information and communications network is also developing rapidly, in line with the characteristics of the changed information and communications network.

Ultimately, the specific methods of measures to detect child pornography in the information and communications network are professional and technical matters, which are directly stipulated in the law.

Further, specific and detailed matters are recognized to be delegated to subordinate laws and regulations so that the characteristics of each online service and the development of relevant technology can be flexibly responding to the development of each online service (see Constitutional Court Decision 2009Hun-Ba38, Feb. 25, 2010).

(3) We examine whether the elements of a crime are specified in the law to predict what is the act subject to punishment.

As seen earlier, “online service provider,” which is a criminal of the provision subject to adjudication, is a person prescribed by Presidential Decree, who provides services so that other persons may use online data through an information and communications network as defined in Article 2(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Article 2(8) of the Juvenile Sex Protection Act).

In examining the relevant statutory provisions, Article 2(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. defines “information and communications service provider” as “(i) a telecommunications business operator under Article 2(8) of the Telecommunications Business Act and a person who provides or arranges the provision of information using telecommunications services by a telecommunications business operator for profit.” As such, the scope of a criminal subject to adjudication is already clearly and clearly prescribed by the Act. Article 2 of the Enforcement Decree of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. is re-verification that an online service provider is the same as an information and communications service provider under Article 2(1)3 of the Act on Promotion of Information

Among this, in light of the fact that telecommunications business operators under Article 2 subparagraph 8 of the Telecommunications Business Act provide telecommunications services after obtaining permission, making registration, or reporting under the Telecommunications Business Act, and Article 5 of the same Act define and classify the key telecommunications business operators, specific telecommunications business operators, value-added telecommunications business operators, etc. in detail, there is no uncertainty or there

In addition, in the latter case, it is apparent that the term “for-profit purposes” means the purpose of acquiring property benefits or pursuing profits; the term “information provision” means the act of posting, transmitting, lending, sharing various information; and the term “providing mediating information” refers to the act of linking the person who intends to provide information with the person who intends to provide information. Therefore, there is no difficulty in understanding the meaning and predicting the scope

(4) The measures to be taken by such online service provider are measures to discover child pornography in the information and communications network managed by himself/herself. “Detection” of child pornography may be conducted by the online service provider himself/herself, but, in essence, online publication expenses.

Since a host provider merely provides an information and communications network or a means to use it, and exchanges and receives actual information through such means is a service user, the specific contents of the distributed information can be easily known to a service user rather than an online service provider. Considering this, it can be sufficiently predicted that the contents to be determined by the Presidential Decree by delegation of the provision subject to adjudication will be measures to detect child pornography through the name, etc. of the data transmitted directly through the information and communications network by the online service provider, and measures to prepare a report by the service user.

(5) As can be predicted, the part concerning the discovery duty under the provision to be tried can be replaced by what is the matters to be prescribed by the Presidential Decree. Therefore, the part concerning the discovery duty under the provision to be tried does not violate the principle of prohibition of comprehensive delegation.

(c) Whether the part concerning measures to prevent deletion and transmission of a clause subject to adjudication violates the principle of clarity;

(1) The principle of no punishment without the law derived from the second sentence of Article 12(1) and the first sentence of Article 13(1) of the Constitution refers to a crime and punishment must be determined by law. The principle of clarity derived from the principle of no punishment without the law refers to what anyone intends to punish, what can anticipate how punishment is to be imposed by law, and therefore, the elements of a crime must be clear so that he can decide his act (see, e.g., Constitutional Court Decision 98Hun-Ga10, Jun. 29, 200).

(2) An online service provider shall take measures to immediately delete and prevent further transmission of the material revealed as child pornography. “Immediate deletion” is premised on the fact that a specific material is transmitted in whole or in part to the information and communications network managed by the online service provider and currently stored. As such, an online service provider should take measures to eliminate the relevant child pornography from the stored location and prevent other users from doing any act of using, such as unloading or reproducing it. Moreover, “prevention or suspension of transmission” is premised on the premise that specific material is being moved through the information and communications network of the online service provider, and thus, the online service provider should take measures to prevent the relevant child pornography from being placed in the status of other users by preventing the movement of the material by means suitable for the type of service provided by him/her.

(3) As such, the duty to take measures to prevent deletion and transmission of the provision subject to adjudication can be predicted as what the online service provider prohibits and punishs, and accordingly, the elements of the crime are clearly prescribed so as to enable the determination of his/her act. Therefore, it does not violate the clarity principle

D. Whether an online service provider’s freedom of business operation, the confidentiality of communications of service users, and the freedom of expression is infringed

(1) Limited fundamental rights

The subject clause of adjudication limits the freedom of occupation and the freedom of business execution by imposing the obligation of discovery and deletion and the obligation of measures to prevent transmission on online service providers. In addition, the subject clause of adjudication limits the freedom of communication and the freedom of expression of service users because it is possible to grasp the content of communication of service users in order to control the free search or transmission of data by the service users in such a process, and in particular to confirm whether the service users transmit child pornography.

Since the subject clause of adjudication is a direct person of online service providers, it is also considered whether the freedom of business of online service providers is infringed, focusing on whether it violates the excessive prohibition principle, and whether it violates the freedom of business of online service providers.

(2) The legitimacy of the purpose

Illegal information about obscenity is not only impairing human dignity, but also causing distorted perceptions about sex, and pursuing wrong sexual interest (see, e.g., Constitutional Court Decision 2013Hun-Ga17, Jun. 25, 2015). In particular, child pornography may affect the distorted perceptions that are considered as sexual objects and the formation of abnormal values, which can eventually be connected to sex offenses against children and juveniles, and thus, it is more harmful to them. In order to protect children and juveniles from sex offenses, strict regulation on child pornography is necessary (see, e.g., Constitutional Court Decision 2013Hun-Ga17, Jun. 25, 2015).

The purpose of the adjudication clause is to protect children and juveniles from sexual crimes by preventing and blocking the distribution of child pornography in the information and communications network by punishing acts of assisting or neglecting the distribution of child pornography directly or indirectly by an online service provider, such as providing information and communications network, etc.

(iii) the suitability of the means;

(A) The suitability of the means is recognized, even if the method chosen by the legislators is not the best way to achieve the purpose of the legislative purpose, if the method is a valid means to achieve the purpose of the legislative purpose (see, e.g., Constitutional Court Decision 2002HunBa80, Jun. 29, 2006). Therefore, a child obscene material that cannot be discovered even if an online service provider takes a measure pursuant to a provision subject to the adjudication

Even if it is possible for non-user to keep and transmit child pornography bypassing the technical measures of the online service provider, if it is possible to suppress the distribution and proliferation of child pornography to a certain extent because it is not partially cut off or easy, it can be a valid means to achieve the legislative purpose.

(B) In particular, the technical incompleteness or limitation of the technical measure for recognition purpose is a problem. However, even if only the “comforgic recognition method” which is the technical measure at the most basic stage, if it conforms to the list of words and phrases that can be inferred as materials corresponding to child pornography, and the words and phrases used in the file names of the relevant materials circulated through online services, it can be immediately recognized and discovered as child pornography, and thus, it can be a useful means to achieve the legislative purpose. In addition, in the case of the “comforgic recognition method”, even though it is somewhat weak to the alteration of the intent of service users to avoid blocking, it is a means useful for the recognition and discovery of child pornography. Moreover, it is possible to expect that such technical measure will be improved and that child pornography can be more effectively recognized and discovered in the future.

Therefore, the suitability of the means of the clause is recognized.

(4) The minimum extent of the infringement

(a)Child pornography is a critical means that affects the formation of distorted perceptions to regard children and juveniles as sexual objects and that affects the formation of abnormal values, and viewing is known to be one of the main causes of sexual crimes against children and juveniles. With the rapid development of information and communication technology, the information and communication network is classified into a major route in which child pornography are distributed in large quantities. In order to protect children and juveniles from sex offenses and prevent the formation of distorted perceptions to regard them as sexual objects, the need to actively restrain the storage and distribution of child pornography via the information and communication network is recognized.

(B) Child pornography causes abuse of the right to sexual self-determination of children and juveniles during their production, and includes potential sexual acts sufficient to cause sexual impulses against children and juveniles, and may cause sex offenses against children and juveniles, and thus, is more likely to cause such crime than ordinary obscene materials subject to criminal punishment due to simply undermining sound sexual morals (see, e.g., Constitutional Court Decision 2013Hun-Ga17, Jun. 25, 2015). In light of the seriousness of the phenomenon in which obscene materials are spreading in the Internet space, it is necessary to actively restrain the storage and distribution of child pornography at each stage of providing online services. Accordingly, the provision subject to criminal judgment does not limit to a specific type of information and communications business entity.

Most of the operators related to information and communications networks, which are likely to participate in the storage and distribution of such obscene materials, impose duties on them as criminals.

As such, it cannot be readily concluded that the harm is particularly subject to serious child pornography and that the online service provider involved in the storage and distribution of the child pornography is excessively limited to freedom of business.

(c)The subject clause of the trial sets out the reasons for exemption from punishment for an online service provider while imposing the obligation of detection, deletion and transmission prevention on the online service provider, which does not punish the online service provider. The proviso of the subject clause of the trial sets out the exception that the online service provider does not neglect due care to detect child pornography in the information and communications network, or does not punish if it is technically difficult, even though it was intended to prevent or block the transmission of discovered child pornography, in view of the possibility of mistake or omission in identifying illegal obscene information in the case of technical measures for recognition widely used.

Therefore, the online service provider does not have a duty to discover child pornography in the service provided by him/her pursuant to the provision of the subject to adjudication or to take measures to completely block the distribution of child pornography beyond the technical limit.

(D) After the material has already been disseminated due to the nature of the child pornography, it is difficult to prevent the infringement of human rights of related children and juveniles, and to effectively respond to the wide range of child pornography unless preemptively responded to the obligation of the online service provider to actively discover the material.

However, as in Article 102(3) of the Copyright Act, the legislative purpose of Article 102(3) provides that an online service provider shall not be obliged to actively detect child pornography and impose an obligation on the online service provider to actively investigate whether the infringement occurred within his/her service or to actively investigate the infringement. In cases where a request for deletion or suspension of transmission of child pornography is made by a service user, the method of imposing only the obligation to comply with such request cannot be achieved to the same extent as the subject of adjudication.

In addition, considering that certain measures to restrain the storage and distribution of child pornography may cause inconvenience to service users, the online service provider who creates profits with certain consideration from the service users is expected to introduce a scheme to regulate the storage and distribution of child pornography to the point of undermining the profit.

Therefore, it is difficult to take measures to cope with the storage and distribution of child pornography, which is limited to the autonomous regulation of online service providers, and is not effective.

Therefore, in order to effectively block the storage and distribution of child pornography, it is necessary to impose positive obligations on online service providers, and in the process, it is difficult to find a less infringing means with the same effect as the object of adjudication.

(E) From the perspective of sanctions, the provisions of adjudication stipulate only punishment without stipulating any more minor means, such as the imposition of administrative fines, when a person violates the duty to detect, delete, or transmit and prevent transmission. The Constitutional Court has consistently held that “In principle, the issue of whether to define any act as a crime, and impose any punishment on it,” as to the scope and limit of the legislative power of punishment, the issue of whether the legislators should be determined by comprehensively considering our history and culture, the people’s values and sentiment at the time of the legislation, the circumstances at the time of the legislation, the nature and nature of the crime, the protected legal interests and interests of the State, and the effect of crime prevention, etc., and where the broad legislative discretion or freedom of formation is recognized.” (see, e.g., Constitutional Court Decision 90HunBa24, Apr. 28, 1992; Constitutional Court Decision 96HunBa16, May 27, 199; Constitutional Court Decision 2006Hun-Ga13, Nov. 29, 2007

In light of the fact that the provision subject to adjudication provides for a violation of the online service provider's duty to detect or delete and take measures to prevent transmission and punishment, the legislators are deemed to have serious harm caused by the storage and distribution of child pornography, and that the information and communications network advanced with the information and communications technology developed on the day is likely to further deteriorate such situation, it is based on the decision that it is necessary to impose obligations on the online service provider directly as a criminal and to secure effectiveness through strong sanctions such as punishment.

As a result, it cannot be said that the clause subject to adjudication imposes positive obligations on online service providers and takes countermeasures against punishment, which goes beyond the limit of the discretion of legislators.

(f) Comprehensively taking account of these facts, the clause of the trial does not violate the minimum principle of infringement.

(5) Balance of legal interests

In addition, online service providers have the burden of applying measures to detect child pornography and measures to prevent the deletion and transmission of discovered child pornography, resulting in costs, and, if technical measures are inadequate, may be punished. In addition, online service providers may be subject to punishment.

A. In order to detect child pornography, the communications of service users are placed under the surveillance of online service providers in the process of technically analyzing the characteristics and titles of the materials that are suspected as child pornography by receiving a report from the service users on the materials suspected as child pornography, and there is room for causing private disadvantages, such as somewhat lowering the confidentiality of communications or the freedom of expression of service users.

However, the interests achieved through the clause subject to adjudication, i.e., the wide distribution and proliferation of child pornography, prevent various harm caused by child pornography, and in particular the public interest that prevents priorly the possibility of infringing human rights of related children and juveniles is greater than the private disadvantages caused by the above, and the fact that the privacy of communications of service users and the freedom of expression may be infringed is a matter to be dealt with by ensuring that online service providers are obliged to keep confidentiality through separate laws.

Therefore, the clause to be tried does not violate the principle of balance of legal interests.

(6) Sub-committee

The provisions subject to adjudication shall not infringe on the freedom of business of online service providers, the confidentiality of communications of service users and the freedom of expression.

5. Conclusion

The provisions of the adjudication are not in violation of the Constitution, and are so decided as per Disposition by the assent of all participating Justices.

Judges

Justices Lee Jin-sung Kim Jong-sung, Kim Chang-sung, Cho Chang-ho, Lee Jong-sung (Administrative Digital Signature as an overseas business trip) and Lee Jong-dae, Lee Jae-ho, Lee Jae-ho,

Site of separate sheet

[Attachment] Relevant Provisions

The Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012)

The definitions of terms used in this Act shall be as follows:

4. The term "act of purchasing sex of a child or juvenile" means any of the following acts, in return for offering or promising to offer money and valuables or other property benefits, duties, convenience, etc. to a person arranging the purchase of sex of a child or juvenile, or a person who actually protects and supervises a child or juvenile, or a person who actually protects and supervises such child or juvenile:

The term "child or youth" means to have a child or youth do an act for a child or youth or have a child or youth do so.

(a) Sexual intercourse;

(b) Similar sexual intercourse using part of the body, such as the mouth and anus, or implements;

(c)any act of contact and exposing all or part of the body, which causes sexual humiliation or aversion of ordinary people;

(d) Self-defense;

5.The term "child or youth pornography" means the appearance of children, juveniles, or persons or representations that can be clearly perceived as children or juveniles, doing any act set forth in any of subparagraph 4 or engaging in any other sexual act in the form of a film, video, game software, or picture, image, etc. displayed on computers or other communications media;

8. The term "online service provider" means a person prescribed by Presidential Decree, who provides services so that other persons may use online data through an information and communications network (referring to an information and communications network defined in Article 2 (1) 1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.; hereinafter

Enforcement Decree of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Presidential Decree No. 24567, May 31, 2013)

Article 2 (Scope of Online Service Providers) "Persons prescribed by Presidential Decree" in subparagraph 8 of Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter referred to as the "Act") means the providers of information and communications services under Article 2 (1) 3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

Article 3 (Measures for Detection of Child or Juvenile obscenity) (1) "Measures prescribed by Presidential Decree" in the main sentence of Article 17 (1) of the Act means all of the following measures: Provided, That where it is possible to detect child or juvenile obscenity by taking measures prescribed by other Acts, all or part of the following measures may not be taken:

1. Measures that enable an online service provider to report on a regular basis, where a user discovers online data suspected as child or juvenile pornography;

2. Measures to find out data technically perceived as child or juvenile pornography by analyzing the characteristics or titles of online data;

(2) An online service provider may request the Korea Communications Commission under Article 18 of the Act on the Establishment and Operation of Korea Communications Commission to deliberate on online data difficult to determine as child or juvenile pornography.

(3) The Minister of Gender Equality and Family may provide administrative support necessary for online service providers to take measures, such as discovering and deleting child or juvenile pornography, and may establish a cooperative system with online service providers, related institutions and organizations.

Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Amended by Act No. 10166, Mar. 22, 2010)

Article 2 (Definitions) (1) The definitions of terms used in this Act shall be as follows:

1. The term "information and communications network" means an information and communications system for collecting, processing, storing, searching, transmitting or receiving information by using telecommunications facilities and equipment under subparagraph 2 of Article 2 of the Telecommunications Business Act or by using telecommunications facilities and equipment, computers and computer technologies;

3. The term "information and communications service provider" means a telecommunications business operator under subparagraph 8 of Article 2 of the Telecommunications Business Act and a person who provides or arranges the provision of information using telecommunications services by a telecommunications business operator

Telecommunications Business Act (Amended by Act No. 10166, Mar. 22, 2010)

The definitions of terms used in this Act shall be as follows:

2.The term "telecommunications equipment and facilities" means machinery, appliances, lines or other facilities necessary for telecommunications;

8. The term "telecommunications business operator" means an entity that provides telecommunications services upon obtaining a license, or completing registration or reporting (including exemption from reporting) under this Act;

Article 5 (Classification of Telecommunications Business) (1) Telecommunications business shall be classified into key communications business, special category telecommunications business and value-added telecommunications business.

(2) The key communications business shall be a business which installs telecommunications line equipment and facilities, and provides the key communications services through such telecommunications line equipment and facilities.

(3) The special category telecommunications business shall be as follows:

1. A project that provides key communications services by using telecommunications line facilities, etc. of a person who has obtained a license for key communications business under Article 6 (hereinafter referred to as "key communications business operator");

2. Business that installs telecommunications equipment and facilities in the premises prescribed by Presidential Decree or provides telecommunications services within such premises by using such equipment and facilities.

(4) The value-added telecommunications business shall be a business providing value-added telecommunications services.

심판대상조문

아동·청소년의 성보호에 관한 법률(2012. 12. 18. 법률 제11572호로 전부개정된 것) 제17조 제1항

참조조문

헌법 제12조 제1항, 제13조 제1항, 제15조, 제18조, 제21조, 제37조 제2항, 제75조

헌법재판소법 제41조

아동·청소년의 성보호에 관한 법률(2012. 12. 18. 법률 제11572호로 전부개정된 것) 제2조 제4호, 제5호, 제8호

전기통신사업법(2010. 3. 22. 법률 제10166호로 개정된 것) 제2조 제2호, 제8호, 제5조

정보통신망 이용촉진 및 정보보호 등에 관한 법률(2010. 3. 22. 법률 제10166호로 개정된 것) 제2조 제1항 제1호, 제3호.

아동·청소년의 성보호에 관한 법률 시행령(2013. 5. 31. 대통령령 제24567호로 전부개정된 것) 제2조, 제3조

참조판례

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나. 헌재 2000. 6. 29. 98헌가10, 판례집 12-1, 741, 748

다. 헌재 1992. 4. 28. 90헌바24, 판례집 4, 225, 229헌재 1999. 5. 27. 96헌바16, 판례집 11-1, 529, 538-539헌재 2006. 6. 29. 2002헌바80등, 판례집 18-1하, 196, 206 헌재 2007.11.29. 2006헌가13, 판례집 19-2, 535, 540헌재 2015. 6. 25. 2013헌가17등, 판례집 27-1하, 402, 416-418

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공보(제261호)

피인용판례

2017헌마901, 2018.12.27