Meanwhile, Article 2 Subparag. 1 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012; hereinafter “Juvenile Act”) provides for special cases concerning the punishment of sex offenses against children and juveniles and the procedures therefor, preparation of relief and support procedures for victimized children and juveniles, and systematic management of sex offenders against children and juveniles so that children and juveniles can protect them from sex offenses and grow up as healthy members of society (Article 1), and Article 2 Subparag. 5 of the same Act provides that “children and juveniles shall be under 19 years of age: Provided, That those who have served January 1 of the year in which they reach the age of 19 shall be excluded; “child and youth pornography” refers to those who have served as children, juveniles, or persons or representations that can be perceived as children and juveniles and who have expressed or used children or juveniles with obscene or other obscene media or other acts provided for in Article 2 Subparag. 4, including sexual intercourses, and who display or use them in the form of a video or game.

Examining the relevant provisions and legislative intent of the ASEAN in light of the legal principles as to the interpretation of penal provisions as seen earlier, it is reasonable to interpret that “a person who may be perceived as a child or youth” as defined in Article 2 subparag. 5 of the ASEAN means a person who is equal to that of a child or youth and is entitled to the equivalent legal assessment. Therefore, considering the appearance and physical condition of the appearing person along with the content of the given obscenity, the source and production process of video works, etc., comprehensively taking into account the contents of the given obscenity, it means a person who can be perceived as a child or youth and can be clearly perceived as a child or youth, from the perspective of the average social person,

2. According to the reasoning of the judgment below and the record, the file name of the video of this case in the judgment of the court below is "Japan Sapol Lir.mpg", and among the video of this case, the female who suffered clothes that can be seen as school uniforms in the photographs capturing a part of the video of this case shows the appearance of his sexual organ, but on the other hand, it seems difficult to conclude the above female as a child or juvenile under the Ahian Act in light of the external appearance and physical condition of the woman appearing in the above pictures. Examining these facts in light of the legal principles as seen earlier, it is difficult to view that the video of this case clearly appeared in the video of this case as a child or juvenile, and therefore it cannot be concluded that the video of this case constitutes a child or juvenile pornography.

Nevertheless, the lower court determined that the instant video constitutes a child or juvenile pornography solely on the grounds stated in its reasoning, on the premise that the aforementioned legal doctrine is different from that of the legal doctrine as seen earlier, with respect to “persons who can be perceived as children or juveniles” as prescribed by the ASEAN Act.

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on child and juvenile pornography in the ASEAN Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Of the judgment of the court below, the part on the violation of the ASEAN Act (production, distribution, etc. of obscene materials) should be reversed. Since the judgment of the court of first instance maintained by the court below rendered a single sentence on the grounds that this part of the judgment of the court of first instance was guilty and the remaining facts constituting concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court

4. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)