(Distribution)Promotion of Information and Communications Network Utilization and Information Protection, etc.

Violation of law, Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

Indecent Acts, violation of the Child Welfare Act (indecent acts against children)

G. G. P. P. H.

1. Relevant legal principles

(a) Legislative history of a penal provision on the production of child or juvenile pornography;

Article 2 subparag. 1 of the former Act on the Protection of Juveniles from Sexual Abuse, which was enacted on February 3, 200, provides that the definition of a juvenile shall be defined as a male and female under 19 years of age, and Article 8(1) provides that a person who produces, imports, or exports obscene materials shall be punished by imprisonment for a limited term of not less than five years. The former Act on the Protection of Juveniles from Sexual Abuse, which was amended on June 9, 2009, was amended as the Act on the Protection of Children and Juveniles from Sexual Abuse (hereinafter referred to as the "Juvenile Sex Protection Act"). Article 11(1) of the former Act on the Protection of Juveniles from Sexual Abuse, which was wholly amended on December 18, 2012, the penal provision under Article 8(1) of the former Act was maintained, but the statutory penalty was raised to imprisonment for life or for not less than five years (the amended Act on the Protection of Juveniles from Sexual Abuse, which was amended on June 2, 2020, refers to a child and juvenile pornography as an object of child or juvenile sex abuse.

B. Whether a crime of violation of the Juvenile Protection Act (production, distribution, etc. of obscene materials) is established where a child or juvenile has made himself/herself photograph obscene materials for himself/herself

1) In a case where the Defendant had a child or juvenile photographes obscenity for himself/herself, if the Defendant planned to produce the obscenity even if he/she did not do so by himself/herself, or gave specific instructions in the process of inducing or creating the obscenity, production constitutes “production of obscenity for children or youth,” barring any special circumstance, and production leads to the completion of the obscenity when the obscenity was stored in a viable form after completing such photographing (see Supreme Court Decisions 2017Do1843, Jan. 25, 2018; 2018Do9340, Sept. 13, 2018).

2) As seen above, it is interpreted that the production of child or juvenile pornography does not require the Defendant to take the film directly. Its purpose is ① the generalization of the distribution of mobile devices, ② The production of child or juvenile pornography is very easy, ② the production of a large quantity of images can be immediately distributed and large amount of reproductions can be offered regardless of the intention of the person involved in the production, ② there is a possibility that the production of obscene materials can be promptly distributed, regardless of the intention of the person involved in the production, ③ the production of obscene materials itself is considerably inherent in the risk of distribution, ③ the legislative purpose of the Juvenile Sex Protection Act, the legislative purpose of the Act, the recognition of the character with heavy social influence of children and juveniles, and the abnormal sense of values; the need to protect children and juveniles from society until children and juveniles grow as responsible in the community; ② the dignity of children and juveniles as well as the production and use of obscene materials can be easily resolved as a crime against the dignity of children and juveniles, and the production and use of obscene materials is also difficult to find out the production and use of 20 children and juveniles.

(c) requirements for the establishment of co-principals;

In order to establish a joint principal offender under Article 30 of the Criminal Act, it is necessary to implement a crime through a functional control based on the joint doctor. Here, the intent of joint process is insufficient to recognize another person’s crime and to allow it without restraint. It should be one of the two with intent to commit a specific criminal act with intent (see, e.g., Supreme Court Decision 2002Do7477, Mar. 28, 2003). Such intent of joint process is insufficient to recognize another person’s criminal act and to accept it without restraint (see, e.g., Supreme Court Decision 2000Do576, Apr. 7, 200). In cases where each of the accomplices is not required to establish an indirect fact that is reasonably related to an indirect fact that is one of the constituent elements or the act related to the constituent elements of the criminal act, and there is no need to establish an indirect fact that is reasonably related to an indirect fact that is not related to an indirect fact that is one of the constituent elements of the co-offender (see, 2001).

2. Judgment of this case

A. The facts charged of the instant case reveal that the Defendant, in collusion with the Nonindicted Party and other accomplices, led children and juveniles who became aware of through SNS, etc. to access the site of personal information seizure (hereinafter referred to as the “phishing site of this case”), seizes the ID and password of the Twitter account, collects b body pictures and personal information stored in a Twitter by the victims who are juveniles, using them, and thereby inducing the victims to take pictures of obscene pictures and videos and send and post them to the telegram group rooms, thereby inducing the victims to take pictures of obscene pictures and videos and videos and send and post them to the telegram group rooms. In addition, the Defendant made a child and juvenile pornography production, by threatening the victims who are children and juveniles, and at the same time made indecent acts by force the victims who are children and juveniles, and at the same time made obscene acts to the victims.

B. Based on the premise that the act of Defendant et al. to have the victims photograph and transmit photographs, etc. constitutes a production, the lower court: (a) was aware of the plan for the crime of the Nonindicted Party et al. prior to the participation in an organization modernization of the telegram created for the crime of this case; (b) confirmed the entire process of the crime of this case and the role of the accomplices; and (c) became more specifically aware of the plan for the crime of the existing accomplices, such as the Nonindicted Party, etc., and the division of roles through dialogue with accomplices; and (b) determined that the Defendant could have been aware of the fact that the Defendant did not directly take charge of the crime of this case, and provided advice to inquire about the situation of the crime of this case; or (c) took part in the criminal act of this case, the Defendant could have been aware of the fact that the Defendant did not directly take charge of the crime of this case’s crime of this case, and that the Defendant could not take part in the crime of this case’s crime of this case’s crime of this case’s unlawful act after the crime of this case’s unlawful act.

For the foregoing reason, the lower court found the Defendant guilty of the facts charged of the instant case with the purport that the Nonindicted Party, by posting a writing on the telegram group or reading room, proposed to seek team members to produce children and juveniles with obscene materials through programming, SNS account hacking, and intimidation, and that the Defendant and the rest of his/her accomplices consented in succession, and thereby, committed the act accordingly.

C. In light of the evidence duly admitted in light of the aforementioned legal doctrine, the lower court did not err by violating the rules of evidence or by misapprehending the legal doctrine on the establishment of joint principal offenders, as otherwise alleged in the grounds of appeal.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan