아동ㆍ청소년의성보호에관한법률위반(음란물제작ㆍ배포등)
The judgment of the court below is reversed.
Defendant shall be punished by a fine of one million won.
The defendant does not pay the above fine.
1. Summary of grounds for appeal;
A. The Defendant, in its original Internet, was displayed again after downloading the media pictures of the general public, cannot be deemed as a child or juvenile pornography, and there was no criminal intent.
B. Sentencing of the lower court: 3 million won, and 40 hours after completion of a sexual assault treatment program.
2. “Apparent materials that can be clearly perceived as a child or juvenile” under Article 2 subparag. 5 of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection Act”) means expressive materials that can be objectively perceived as a juvenile from the perspective of the average person. In individual cases, the determination should be made carefully by taking into account various circumstances, such as the description of the appearance and physical development of a person, voice or horse, uniform, situation setting, and background or reduced distance of video works, where expressive materials are expressed.
(See Supreme Court Decision 2016Do18995 Decided June 13, 2019). The defendant puts clothes presumed to be a school uniform on the Internet website bulletin board, and shows that the defendant's pictures are taken in the bedrooms, and the defendant's age appears to be the age of the first high school student. However, since (1) the face is taken more than half of the (2) and a significant part of the taken face is taken in the head scam, the exposed part cannot be readily determined by itself; (2) the head scam of a woman taken in the (Hone Day) cannot be determined by the exposed part; (3) the head scam of a woman taken in the (Honeone Day) is difficult to estimate the age in the head shape in the nearest high school school students; (3) the photograph of a woman taken in the bedrooms, not in the above school products, on the back side of the female, and thus, the children's children's children's children's children's children and juveniles's children's rooms are not taken.