[2] The case holding that in case where a notice was posted on the Internet sponsoring advertising advertising site and the cartoon, etc. describing the chinese's photograph, gender sexual activity scene of male and female, the contents of the notice do not constitute the concept of "obscenity" under Article 65 (1) of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, etc., since it is not enough to evaluate that the contents of the notice seriously damaged and distorted human dignity and value as the subject of criminal regulation

The summary of the facts charged of the instant case is as follows: “The Defendant is the operator of the Internet site, from September 2004 to March 6, 2005, up to 400 points, including the pictures of the former women and women’s fladity, the pictures of the former and women’s fladity, etc., and the cartoon photographs, etc., posted 400,000 won in general, and then openly distributed and displayed obscene images or videos through information and communications networks, such as raising the monthly average income of KRW 400,000,000, in the name of advertising revenue, to C, which is the Internet hosting advertising site operated by the Defendant at the Defendant’s office located in Yangsan-si.

2. The judgment of the court below

The court below found the defendant guilty of the facts charged of this case on the ground that the photograph, etc. posted on the above Internet site cannot be found as factors that alleviate the sexual stimulation due to the appearance of the person, attitude, background of photographing, photographing technique, or artisticity, etc. Rather, the above photograph, etc. is taken in the face of the appearance of the woman and women, or in the face of sexual intercourse with the appearance of sexual intercourse, and the expression of sex is gradually liberalized compared with the previous one, considering today's three attitudes, the expression of sex is gradually liberalized compared with the previous one, in light of our social norms, the above photograph, etc. is mainly emphasizing the selected aspect, leading to a lewdness of the readers, leading to sexual humiliation and harm the normal sense of sexual shame by stimulatinging the common person's sexual desire, and thus, it is obscene.

3. The judgment of this Court

However, it is difficult to accept such judgment of the court below for the following reasons.

The term “obscenity” under Article 65(1)2 of the former Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (amended by Act No. 8778 of Dec. 21, 2007) means that a person’s sexual desire is not having the value of literary, artistic, ideological, scientific, scientific, medical, or educational value, solely or dominant sexual interest in light of social norms, by stimulating ordinary people’s sexual desire, thereby impairing their normal sexual humiliation. In light of the overall observation and evaluation of representations, the expression as a whole may be deemed to have seriously damaged and distorted the human dignity and value of the person with the character to be respected and protected beyond the degree that they merely feel indecent or disturbed. In light of social norms, the expression or behavior of the person with the character to be respected and protected should be deemed to have been clearly expressed and distorted. In determining whether the expression is obscene or not, it should be deemed that it does not have a subjective, artistic, scientific, medical, or educational value from an objective and sound standpoint of the society, not from an average of 2083 times of expression.5.

According to the records, the defendant's posting of his Internet sponsor advertising and entertainment nudity on his own Internet advertising site is mainly a cartoon, etc. containing a photograph of a woman of Jeonra's and a woman's fingers, etc., or a cartoon, etc. describing a sexual act of a woman of Jeonra's sexual intercourse. Among these pictures, the photograph is mainly taking the mixed sexual act of a woman of Jeonra or halfra, and it does not make a sexual act of a woman of a woman of a woman of a sexual intercourse, but a cartoon describing a sexual act between men and women is also expressing a sexual act of a man of a man of a man of a sexual intercourse. It is true that a man of a man of a woman of a woman of a sexual intercourse or a man of a woman of a sexual intercourse does not have any direct exposure to his or her sex organ or conspiracy. Thus, in light of the above legal principles, even if the overall observation and evaluation of these pictures and cartoons, their contents cannot be determined to have seriously damaged or disturbed the human dignity and value as the subject matter of regulation under the criminal law.

Nevertheless, the court below judged that the above photograph, etc. was obscene and found guilty of the facts charged in this case. The court below erred by misapprehending the legal principles on the obscenity of representations, and it is obvious that such illegality affected the judgment.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)