[2] Purport of Article 8(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and whether the said provision excessively infringes on the person’s general right to sexual self-determination (negative)

[2] Article 8(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse provides for the protection of children and juveniles with disabilities from sexual abuse or exploitation by severely punishing persons who have committed sexual acts against disabled children and juveniles who have weak judgment ability than ordinary children and juveniles and lack ability to exercise their right to sexual self-determination, thereby recognizing the necessity and legitimacy of the legislation.

Meanwhile, even if there is a disability, if it is deemed sufficient to fully exercise the right to sexual self-determination, it does not constitute “children and juveniles who lack the ability to discern or make decisions” under the above provision, and thus, sexual intercourse with such children and juveniles cannot be punished under the above provision. Thus, it cannot be deemed that the above provision excessively infringes on the general right to sexual self-determination of persons with disabilities.

1. As to the grounds of appeal Nos. 1 and 2

Article 8(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection Act”) provides that a person aged 19 or older is punished for engaging in sexual intercourse with a disabled child or juvenile, and that “disabled child or juvenile” subject to such punishment is a disabled person under Article 2(1) of the Act on Welfare of Persons with Disabilities, who lacks the ability to discern things or make decisions due to physical or mental disability.”

“Capacity to distinguish things” under the legal provision of this case refers to the ability to reasonably determine whether to distinguish things and time signals, and “decision-making capacity” means the ability to control one’s act by determining whether to distinguish things according to the person’s attitude. This is related to the ability to distinguish things and decision-making capacity, and does not necessarily coincide with the perception or memory capacity of fact (see Supreme Court Decision 2013Do11323, Jan. 29, 2014). Meanwhile, whether the above ability is lacking can be determined by taking into account not only the opinions of experts, but also the objective evidence, such as the statement of a third party on the ordinary speech and behavior of children and juveniles, and the background of the case, etc., of children and juveniles related to the relevant age, which is lower than the ordinary ability of children and juveniles to exercise the sexual self-determination right.

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court and the above legal doctrine, it is justifiable to have determined that the victim Kim ○ was in a state of lacking ability to discern things or make decisions due to mental disorder, and that the Defendant recognized that the victim was in the aforementioned state at the time of the same act as the facts charged. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on “disabled children and juveniles” under the Juvenile Sex Protection Act, or by exceeding the bounds of

2. As to the third ground for appeal

The legal provisions of this case were prepared to protect disabled children and juveniles from sexual abuse or exploitation by severely punishing persons who have committed sexual acts against disabled children and juveniles who lack judgment ability and lack of ability to exercise sexual self-determination, and therefore, the necessity and legitimacy of the legislation is recognized.

Meanwhile, even if there is a disability, if it is deemed sufficient to fully exercise the right to sexual self-determination, the legal provision of this case does not constitute “children and juveniles who lack the ability to discern or make decisions,” and thus, sexual intercourse with such children and juveniles cannot be punished under the above provision. Thus, the above provision cannot be deemed as excessively infringing on the general right to sexual self-determination of the disabled. Therefore, the ground of appeal that the legal provision of this case is unconstitutional cannot be accepted.

3. As to the grounds of appeal Nos. 4 and 5

Article 11(1) of the Juvenile Sex Protection Act punishs a person who produces, imports, or exports a child or youth pornography. It does not constitute “child or youth pornography” or “production” under Article 11(1) of the said Act on the ground that a person who produces, imports, or exports a video recording that expresses a person’s sexual act due to the appearance of a child or youth, or that it is produced for the primary purpose of possessing, keeping, or storing a private person: Provided, That the determination of whether the production of a video constitutes “child or youth pornography” is unlawful in exceptional circumstances where the production of the video constitutes a legitimate exercise of the person’s right to self-determination, which is protected under the Constitution, in the private sphere of life, including the right to personality, the right to pursue happiness, or the freedom of private life. The determination of whether the production of the video constitutes such act ought to be made in full view of the age and intellectual ability of the child or youth, the purpose and background of production, the purpose of the private act, the contents and history of the act and the contents of the video or juvenile’s voluntary consent.

The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following: (a) the Defendant, as a member of the 20th half-class company, was aware that the Defendant was a child or juvenile who was the third grade student of a middle school, and had access to the victim through Internet hosting for sexual conduct, and contacted several times with the victim for the purpose of sexual conduct; (b) the victim was incapable of distinguishing things or making decisions; and (c) the Defendant had sexual intercourse with the victim on several occasions, such as having sexual intercourse two times on the first day with the victim; and (d) had sexual intercourses with the victim on several occasions; and (e) had taken photographs identical to the facts charged; (b) the Defendant had taken pictures of another child or juvenile with sexual intercourse and kept them by a similar method; and (c) at the time of the Defendant’s taking pictures of the victim’s body at the her motherel, the victim appeared not to have responded with the Defendant’s continuous request, but appears to have been passive and requested to delete part of the pictures.

Examining these facts in light of the legal principles as seen earlier, the Defendant’s act of taking pictures such as the time of original adjudication constitutes the production of child or juvenile pornography as provided by Article 11(1) of the Juvenile Sex Protection Act, and even if there is room to view that there was the victim’s implied consent, it is difficult to view that children and juveniles with sufficient decentralization voluntarily and seriously exercise the victim’s right to self-determination on sexual acts, and thus, it does not constitute grounds for excluding illegality.

Therefore, the court below is just in finding guilty of this part of the facts charged, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles regarding the production of child and juvenile pornography under the Juvenile Protection Act, or exceeding the bounds of the principle of free evaluation

4. Conclusion

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

Justices Kim Yong-deok (Presiding Justice)