아동ㆍ청소년의성보호에관한법률위반(음란물제작ㆍ배포등)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
Sexual assault against the defendant for 80 hours.
1. Summary of grounds for appeal;
A. misunderstanding of facts or misapprehension of legal principles 1) Violation of the Act on the Protection of Children’s Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) (misunderstanding of legal principles), the Defendant received transmission of video files taken by the injured party with the consent of the injured party, but did not store or spread them on a mobile phone.
Nevertheless, the judgment of the court below that the defendant's act constitutes "production of obscenity" under Article 11 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.
2) The Defendant’s act does not constitute a crime subject to punishment under Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media) since the Defendant did not transmit obscene images and photographs to the victim against the victim’s will.
Nevertheless, the judgment of the court below convicting this part of the facts charged is erroneous by misunderstanding the facts and affecting the conclusion of the judgment.
B. The sentence imposed by the lower court on the Defendant (a notice of disclosure of registered information between three years of imprisonment, 80 hours of completion of sexual assault treatment programs, and 5 years) is too unreasonable.
2. Judgment on the misapprehension of the legal principle or mistake of facts
A. The lower court determined as follows: (a) whether the act of having the victim photograph and transmit obscene videos constitutes “production of obscene materials” for the use of children; (b) the content of the Act on the Protection of Children and Juveniles against Sexual Abuse and the legislative purpose and protection of legal interests as follows; (c) the Act on the Protection of Children and Juveniles against Sexual Abuse does not provide for the definition of “production of obscene materials” and does not impose any restriction on the production method or purpose; and (b) the meaning of “production” under the Copyright Act is as follows.