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(영문) 서울고등법원 2017.02.09 2016노3694

아동ㆍ청소년의성보호에관한법률위반(음란물제작ㆍ배포등)등

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All appeals by the defendant and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1’s photograph taken by Defendant (hereinafter in this case’s photograph) does not constitute obscene materials for children and juveniles, as the victim’s face is deleted, etc., and thus, it does not constitute obscene materials for children and juveniles. Even if this case’s photograph constitutes obscene materials for children and juveniles, the Defendant’s act of exercising his/her sexual self-determination right by participating in pictures with the victim’s voluntary and serious intent to be used as obscene materials for children and juveniles, and thus, the Defendant’s act is dismissed.

B) The Defendant only provided a victim with a text message upon the victim’s voluntary exercise of the victim’s right to sexual self-determination, and did not commit emotional abuse against the victim.

C) Nevertheless, the court below found all of the charges guilty. The court below erred in the misapprehension of legal principles, such as hearing failure, mistake of facts, and misapprehension of legal principles.

2) An unfair sentencing of the lower court is unfair because the sentencing of the sentence is too unreasonable (the written opinion of the Defendant and his defense counsel on January 12, 2017, which was submitted after the expiration of the period for filing the appeal) (the summary of the oral argument by the Defendant on January 18, 2017, which was submitted after the expiration of the period for filing the appeal, shall be limited to the supplement of the grounds for appeal specified in the reasons for appeal, and no separate judgment shall be made as to the assertion by the Defendant and the defense counsel on January 18, 2017). B. The prosecutor, such as misconception of the facts that each act committed in the list of crimes (1) as indicated in the judgment of the lower court falls under the act of “to make a child obscene, or to mediate, a child,” or “sexual harassment, etc. that may cause a child a sense of sexual humiliation,” and even if the public prosecution was instituted as constituting the “act of obscene acts against the child,” the offender shall be compelled to do an obscene act as a party.