Violation of the Punishment Act (Intimidation of Group, Home, etc.) and Sexual Assaults

Violation of the Act on Special Cases Concerning the Punishment, etc. of Crimes (Use of Cameras)

Punishment of Minor Offenses: Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

The manufacture, distribution, etc. of eggs)

Residence Chungcheongnam-Nam

Reference domicile Chungcheongnam-Nam

Attorney Choi Han-il

A. Legal principles

Although the Defendant’s act of storing video images taken on a cell phone with the victim’s sexual intercourse constitutes the production of child or juvenile pornography under the Act on the Protection of Children and Juveniles against Sexual Abuse, the lower court erred by misapprehending the legal doctrine, thereby acquitted the Defendant of the facts charged as to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials).

B. Unreasonable sentencing

The sentencing of the lower court (two years and six months of imprisonment, three years of suspended execution, and forty hours of the sexual assault treatment course) is too uncomfortable.

2. Judgment on misapprehension of legal principles

A. The judgment of the court below

1) Whether a child or juvenile pornography constitutes “child or juvenile pornography”

The video images taken with a sexual relationship with the victim (hereinafter referred to as "the video of this case") constitute "children and juvenile pornographys" under Article 2 subparagraph 5 and subparagraph 4 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11287, Feb. 1, 2012; hereinafter referred to as the "Juvenile Act").

2) Whether it constitutes “production” of child or juvenile pornography

A) In light of the legislative history, legislative purpose, etc. of the AB law, the purpose of the AB law is to protect children and juveniles from sexual abuse or sexual exploitation, while to severely punish children and juveniles who have committed the above sexual acts, thereby protecting the sex of children and juveniles. In particular, Article 8(1) of the AB law provides that the purpose of the AB law is to prevent children and juveniles from being abused or being subject to sexual exploitation by forcing them to appear in a expressive material with contents of sexual acts of children and juveniles in the process of their physical and mental development, or by inducing them to make contributions in return for money, thereby preventing them from being sexually abused or being subject to exploitation.

B) However, it is difficult to view that the Defendant’s act of naturally photographing and storing sexual intercourse between him/her as a mobile phone with the consent of the victim who is a juvenile in a personal relationship as seen in the instant case is interference with any sexual abuse or exploitation against him/her (at least 13 years old who is recognized as the consent capacity for sexual intercourse, and even if he/she was aware of the act of photographing and storing sexual intercourse with him/her, it is deemed that the victim has the ability to properly consent to the act, and thus, it is deemed that there was no sexual abuse or exploitation in that process unless the victim is forced to force or money, and that there was no sexual abuse or exploitation in that process), and the purport and purpose of the admission of the Cheong law, when considering that the above act of the Defendant constitutes the production of a disturbance for children and juveniles, and if punishment is imposed for a limited term of five years or more, it would rather be unreasonable to interpret the meaning of “child and juveniles pornography” as an ordinary meaning of production. Therefore, in such cases, it is necessary to interpret the meaning of “child and juveniles’ pornography.”

C) A balance with other forms of conduct provided for in Article 8(1) of the ASEAN Act;

(1) Meanwhile, Article 8(1) of the Listening Act provides for the act of producing child or juvenile pornography as a target of punishment for "importing," or "exporting," as well as the act of producing "production, etc. of child or juvenile pornography." Thus, in order to constitute "production, of child or juvenile pornography, its illegality is likely to cause criticism, or "import, of child or juvenile pornography." However, importing and exporting commercial child or juvenile pornography is premised on the fact that the pornography produced is traded in excess of the border, and thus, making child or juvenile pornography for the purpose of private possession and storage without any transaction, distribution, and distribution merely does not significantly fall under the category of "import or export of such child or juvenile pornography," but it does not fall under the category of "production, etc. of child or juvenile pornography," and thus, the act of importing and exporting child or juvenile pornography constitutes an act of manufacturing and importing child or juvenile pornography as provided for in Article 8(1) of the Listening Act.

(2) However, the Defendant made a statement from an investigative agency to this court to the effect that he/she taken the instant videos simply, and it does not seem that there was a purpose of transaction, distribution, and distribution of the instant videos. This is supported by the fact that the Defendant received a request from the victim for deletion of the instant videos due to the long time after the Defendant taken the instant videos, and that immediately allowed the victim to delete the instant videos. Therefore, as in the instant case, the Defendant’s act of photographing and storing the instant videos with the victim’s consent for private possession and storage without trade, distribution, distribution, and distribution without the victim’s consent cannot be evaluated as the same level as “import” under Article 8(1) of the Asia’s Act and “export, etc.” (in addition, the first prosecutor, despite having been aware that the Defendant had taken the said videos against the victim, he/she was punished by imprisonment with prison labor for not more than five years or a fine not exceeding one million won under the Act on Special Cases Concerning the Protection of Children and Juveniles against Sexual Abuse (hereinafter referred to as “the aforementioned statutory punishment for Publication Production”).

3) Summary of the judgment

A) In the case of a teleological interpretation in consideration of the legislative process and legislative purpose of the Listening Act, balance with other types of acts as stipulated in Article 8(1) of the Listening Act, “production of child or juvenile pornography” as defined in Article 8(1) of the Listening Act shall be construed as “production of child or juvenile pornography,” which was made for the purpose of mere private possession and storage without the purpose of delivery, distribution, and distribution, and ② it shall be interpreted as not to intervene in any sexual abuse or exploitation against juveniles by obtaining the genuine consent of juveniles more than 13 years of age who appeared in the production process.

B) However, the Defendant’s act of photographing and storing sexual intercourses among them using a cell phone with the consent of the victim at 17 years of age who was in a relationship with the victim, does not seem to have engaged in any sexual abuse or sexual exploitation against the victim in the process, and it is not thought that there was any trade, distribution, and distribution to the Defendant even in light of the circumstances following the deletion of the video. Thus, the Defendant’s act of photographing and storing the video of this case does not constitute “production of child or juvenile pornography” under Article 8(1) of the ASEAN, and there is no other evidence to acknowledge this differently.

C) Therefore, the facts of public prosecution as to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) fall under a case where there is no proof of criminal facts, and thus, acquitted under the latter part of Article 325 of the Criminal Procedure Act.

B. Judgment of the court below

1) Principle of statutory interpretation

In order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority, the principle of no punishment without the law requires the interpretation of the penal law. In light of such purport, the interpretation of the penal law must be strict, and it is not permitted to excessively expand or analogically interpret or analogically interpret the meaning of the penal law to the disadvantage of the defendant in a direction unfavorable to the defendant in violation of the principle of no punishment without the law. However, the interpretation of the penal law also has the normative meaning clearly, so that it can be applied to specific facts in the request of the principle of no punishment without the law. However, the interpretation of the penal law is subject to the above restriction under the request of the principle of no punishment without the law, first of all, it is necessary to clarify the meaning of the language meaning of the fishing gear or door in the law, and at the same time, it must be interpreted to have logical consistency by taking into account the relation with other laws. In a case where the interpretation of the penal law cannot be sufficiently grasped as a norm of law, it is also possible to embody the meaning of the penal law within the ordinary scope of 201.

2) The issue is raised

The lower court determined that the instant videos taken by the Defendant and the victim’s sexual intercourse constituted a child or juvenile pornography prohibited under the Atosi Act: Provided, That the lower court determined that the instant videos do not constitute “production of a child or juvenile pornography prohibited under the Asisitosito Act if they were made for personal possession and storage without trade, distribution and distribution purposes without the consent of the juveniles aged 13 or older.”

Here, the concept of "child or juvenile pornography" defined in Article 2 subparagraph 5 of the ASEAN refers to the expression "an act that can be clearly perceived as a child or juvenile, or any other sexual act" in the form of film, video, game software, or computer or any other medium of communication, such as picture, video, game software, or picture or image.

However, it is doubtful whether it is possible to reasonably interpret the concept of ‘production of child or juvenile pornography' as an act of ‘production of child or juvenile pornography' prohibited by the Audio Act, in order to seek the proper scope of exercise of national penal authority, it is very careful in examining whether the statutory penalty for the production of child or juvenile pornography, which was instituted by the prosecutor, falls under the category of ‘production of child or juvenile pornography' prohibited by the Audio Act. In addition, the crime of production of child or juvenile pornography, which was instituted by the prosecutor, needs to be examined in order to reasonably interpret the concept of ‘production of child or juvenile pornography' in light of the principle of strict interpretation of the principle of no punishment without law in relation to the provision of related Acts and subordinate statutes.

3) The need for a narrow interpretation based on the privacy and freedom guaranteed by the Constitution

The legislative purpose of Article 8 of the ASEAN, which prohibits the production, import, export, sale, lending, distribution, display, screening, etc. of child and juvenile pornography, is to protect children and juveniles from sexual crimes and to enable children and juveniles to grow up as healthy members of society, is to fully accept the rationality in general.

However, Article 17 of the Constitution of the Republic of Korea provides that "All citizens shall not be subject to any infringement on the privacy and the freedom of privacy." The creation of a sexual life by an agreement between individuals and a video to commemorate the sexual life is the most secret part of privacy, and the secrecy and freedom of privacy should be guaranteed to the maximum extent, and the intervention of the State in this area should be minimized.

Therefore, if it is interpreted that the ASEAN Act is a concept that includes all video works made in the area of private life, such as “children and cleaning obscene materials” which are produced, imported, exported, sold, rented, distributed, exhibited, or screened, such an interpretation is a violation of the purpose of the Constitution guaranteeing the secrecy and freedom of private life. Therefore, such an interpretation may not be made, and it is necessary to interpret the law constitutionally in accordance with the above purport of the Constitution.

(iii) requirements for privacy subject to protection that are excluded from punishment under the laws of ASEAN;

Even if the freedom of privacy guaranteed under the Constitution is essential for national security, maintenance of order, and public welfare, it may be limited by an Act (Article 37(2) proviso of the Constitution of the Republic of Korea). Therefore, in accordance with the legislative intent of the ASEAN Act, the privacy and freedom of private life may also be restricted, and even in the case of privacy, in principle, it is reasonable to punish a person in accordance with the legislative intent thereof in a case where he/she infringes on the legal interests pursued by the ASEAN Act. However, even if the fundamental rights are restricted by law, it cannot be infringed upon (latter part of Article 37(2) of the Constitution of the Republic of Korea), and under the foregoing, a video work made in an essential area subject to constitutional protection (limited to the expression of a sex act of a child or juvenile; hereinafter the same shall apply) that is intended to exclude a child or juvenile pornography or its production from the scope of “production.”

(A) the true consent of children and juveniles over 13 years of age is obtained;

In addition, in consideration of the fact that a child or a youth pornography prohibited under the ASEAN contains a sexual act and is banned from sexual act or sexual purchase act under the same Act, in order to be evaluated as a video recording excluded from punishment under the ASEAN Act, the given that in order to give such consent, Dong and the youth must agree to take the relevant video recording, at least 13 years of age with the capacity to consent of sexual act under the criminal law, and at least 13 years of age or older with the capacity to consent of sexual act under the ASEAN Act should be evaluated as a genuine consent, such as not interfering with force or consideration.

(B) the photographer is a party to the relevant sexual act;

Even if a child or juvenile appearing in a video recording (hereinafter referred to as "relevant child or juvenile") consented to the photographing of such a video recording, if the video recording is deemed to be a sexual act between a third party and the relevant child or juvenile, or a sexual act of the relevant child or juvenile, then it cannot be deemed to be a private life of the photographer. Since the act of sexually using the relevant child or juvenile violates the legislative purpose of the Audio Act as seen earlier, the photographer is required to be a party to a sexual act expressed in the video recording of the year. Further, by interpreting it as above, it is consistent with the terms such as "use", "a chief", and "an expression" as defined in the definition provision of "child or juvenile pornography".

(C) have no purpose of selling, lending, distributing, openly displaying or screening;

It is understood that not only includes the appearance of children and juveniles, but also children and juveniles who are able to be perceived as children and juveniles, or representations that prohibit the production, distribution, etc. of a child and juvenile pornography, but also includes the preventive purpose of promoting sexual abuse and exploitation of children and juveniles, or stimulating their psychological and motives by exposing the given obscene materials. Thus, even if the filmer consented to take the film and appeared together, if the filmer sells, lends, distributes, plays publicly, or displays or displays it together, it would infringe the legal interest pursued by the Listening Act, and it would be limited to the intent of ensuring the privacy of the photographer itself, but also be protected as a private life, and it cannot be evaluated as being the object of the Listening Act to prevent or stimulate sexual abuse and sexual exploitation.

4) Sub-determination

As seen earlier, in order to harmoniously interpret the provisions of the Constitution guaranteeing the secrecy and freedom of privacy and the legislative intent of the ASEAN for the purpose of protecting children and cleaning years from sex offenses and allowing them to grow into healthy members of society, ① children and juveniles appearing in children and juveniles pornography have consented to the photographing of a scene where children and juveniles are 13 years of age or older and do sexual acts as provided in any item of subparagraph 4 of Article 2 of the ASEAN Act without forced force or consideration, and ② The filmer shall also be deemed to be the privacy that shall be protected by taking part in the above sexual acts, etc. by appearing in the given video works, and ③ With respect to video works made for the purpose of selling, lending, distributing, openly displaying or openly displaying them, or openly keeping them for personal possession, such video works shall be deemed not harmful to “children and juveniles pornography” as provided in the ASEAN Act.5)

Based on these legal principles, the facts of this case are examined as follows: ① the victim appears to have consented to the photographing of a person of 13 years of age or older without forced power or price determination; ② there is no evidence to prove that the defendant had the purpose of selling, lending, distributing, openly displaying, or screening this case’s child or juvenile pornography at the time of producing the child or juvenile pornography; ③ The defendant appeared in the relevant video and participated in the above sexual acts; thus, it cannot be deemed as having produced the “child or juvenile pornography” under Article 8(1) of the ASEAN Act as part of the privacy subject to protection.

The above interpretation theory focuses on whether the video of this case can be seen as a "child or juvenile pornography" rather than the meaning of "production" which is the form of an act prohibited by Article 8 (1) of the ASEAN, and it is somewhat different from the interpretation of the court below.

In other words, the court below is based on the premise that the meaning of "production" under Article 8 (1) of the ASEAN should be reduced and interpreted on the ground that the act of creating child or juvenile pornography is a 'production of child or juvenile pornography which is prohibited by the ASEAN Act' for private possession and storage without any transaction or distribution purpose, and that the act of creating child or juvenile pornography constitutes a 'production of child or juvenile pornography' (the import or export is on the premise that the ordinarily produced obscene pornography are traded across the border and distributed across the border) is an imbalance in the pattern of act, import, export, etc., which are prescribed in Article 8 (1) of the ASEAN Act (the import or export is on the premise that the ordinarily produced obscene pornography is distributed across the border). However, the import or export regulated by the ASEAN Act is merely bringing into or out of the Republic of Korea or out of Korea from the Republic of Korea, and it cannot be viewed that it does not always take into account the production and distribution through trade, and it is not reasonable to punish the production and use of children as part of private life.

Therefore, although the reasons are somewhat different, the judgment of the court below that makes the same conclusion with the trial court cannot be deemed to have erred by misunderstanding facts or by misunderstanding legal principles, which affected the conclusion of the judgment, and this part of the allegation by the prosecutor cannot be accepted.

3. Judgment on the assertion of unfair sentencing

The crime of this case is that the defendant carried dangerous articles and threatened the victim, and sexual intercourse with the victim by force, and the liability for the crime of this case is not minor.

However, considering the fact that the defendant's ability to judge is somewhat well-founded due to the burning of the defendant, that the victim does not want to punish the defendant, that the defendant seems to overcome a certain degree of mental suffering, that the defendant does not have any history of punishment for the same kind of crime, and that there is no history of punishment for the same crime, and that all of the various kinds of sentencing conditions in this case are considered, the punishment sentenced by the court below is too unjustifiable.

Therefore, we cannot accept this part of the prosecutor's argument.

4. Conclusion

Therefore, the prosecutor's appeal is without merit and it is so decided as per Disposition by the decision to dismiss it pursuant to Article 364 (4) of the Criminal Procedure Act.

Freeboard

Freeboard Kim Dong-dong

As above, the acts that cause sexual humiliation or aversion of ordinary people, 4 self-defensive acts.

2) In Supreme Court Decision 2012Do435 Decided March 29, 2012, the concept of "manufacture of medicines" under Article 31(1) of the Pharmaceutical Affairs Act is a general demand for personal information.

In order to respond to the problem, the term "production of medicines" has been revealed to mean "production of medicines", and the concept of "production of medicines" under the Ahian Law also seems similar.

There should be an aspect that should be.

3) As the court below properly pointed out, the statutory penalty is imposed on the ground that the original defendant photographs the video against the victim's will.

Prosecution for a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use and Screening of Cameras, etc.) prescribed by imprisonment for not more than five years or a fine not exceeding ten million won.

Since then, when the victim testified to the effect that he/she knew of the above photographing act, he/she was aware of the crime against children and juveniles against sexual abuse.

The indictment was modified for a violation of the law (production, distribution, etc. of obscene materials), and the statutory penalty is more statutory even though the defendant obtained the consent of the victim.

It has become a serious problem that should be punished as a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials).

(c)

4) The ASEAN Act was amended by Act No. 11048 on September 15, 2011, and was amended by Act No. 11048 on September 15, 201, and “child and youth pornography appeared”

Persons or representations that can be perceived as Dong/Juveniles have been expanded to 'if they appear'.

5) However, in the case of such interpretation, there is no sale, lease, distribution, or public display or display at the time of shooting, simply individual causes without the purpose of public display or display.

(1) In the event that a video product was made for the purpose of possession and storage but later for the purpose of the above-mentioned purpose, such video product cannot be punished.

However, if the concept of ‘child or juvenile pornography' is regarded as relative, it may be difficult to see that there is any problem, but if it is deemed that the concept of ‘child or juvenile pornography' is relative.

the term "a person who sells, lends, distributes, or openly exhibits or shows, or who is in accordance with the definition of the concept defined in Article 2 subparagraph 5 of the ASEAN Act."

It can be seen as ‘child pornography'.

6) The theories to explain as above are uniform (the representative editor, 3 books of each part of the fourth letter of the Jeju Criminal Code, and 96 letter of raw milk of 206).

(see, e.g., Supreme Court Decision 200