Punishment of Distribution of Unwhole- some ComicsCase

(14-1 KCCR 87, 99Hun-Ka8,February 28, 2002)

Contents of the Decision

1. Principle ofnulla poena sine legeand the rule of clarity.

2. Whether the provision of the Protection of Minors Act prohibiting and punishing distribution, sales, donation, lending, or showing of comics that may contribute to causing obscene or cruel behaviorof minors or that could instigate minors to commit a crime (here-inafter called the "unwholesome comics") to minors violates therule of clarity.

3. Whether the provision of the Child Welfare Act prohibiting andpunishing the manufacture or publication of books, periodicals, ad-vertisements, or other materials that could be seriously harmfulto the moral character of children violates the rule of clarity.

Summary of the Decision

1. The principle ofnulla poena sine legerequires the elements of a crime and its punishment be determined in the form of a leg-islative act. The rule of clarity derived from the principle ofnullapoena sine legerequires that elements constituting a crime be clearlydefined in order to enable ordinary citizens to recognize what action isprohibited by law and what are penalties for such violation so thatthey can determine the course of their action accordingly. If theelements of a crime of the punitive rules are unclear because of am-biguity or abstractness in description, citizens will be unable to tellwhat activities are prohibited, and whether an activity constitutes a crime or not will be largely dependent on the arbitrary interpretationof a law by a judge. This would be against the rule of law whichaims to protect the freedoms and the rights of citizens through ap- plication of the principle ofnulla poena sine lege.

2. In the instant case, let us first look at the former part of definition of "unwholesome comics" used in Article 2-2 of theProtection of Minors Act, namely, "that may contribute to causingobscene or cruel behavior of minors." The normative concept ofobscenity can be clarified with a judge's supplementary interpre-tation, but the normative concept of cruelty has not yet been clearlyadjudicated by courts. In the dictionary cruelty is defined as "callousindifference to suffering, or ruthlessness". Such definition can beapplied to a wide range of feelings, wills, and actions by minors, andit includes a whole gamut of behaviors ranging from crimes includ-ing murder or physical violence to internal decisions of individualsbased on individual moral, religious, or ideological background. Sucha broad definition will be likely to lead to an arbitrary interpretationand execution of the law by law enforcement agencies and judges.Furthermore, the instant statutory provision prohibits and punishesthose activities that “may,” “contribute to causing” cruel behavior ofminors. The combination of the vague notion of cruelty and suchphrasing of elements of a crime could subject many materials thatare acceptable to the general public to criminal punishment. If the government decides to regulate all activities falling under the pre-scription of the instant provision, the scope of punishment would betoo wide; and if it only aims to regulate certain kinds of activities,it is unclear what activities are prohibited under the present law.Next, let us look at the latter part of the definition of "unwholesome comics" used in Article 2-2 of the Protection of Minors Act, namely, "that could instigate minors to commit a

crime." It is impossible todetermine whether the instant provision would be applied to punish publication of only those comics that actually lead to "the commit-ment of a crime knowingly or recklessly" or that led to activities thatare interpreted as elements of a crime without any consideration ofthe intention of the wrongdoer. It is also unclear whether the pro-vision would be applied to prosecute the publication of comics thatactually bring about any attempts at a crime, any attempts at com-pletion of a crime, or only successful completion of a crime. Theinstant provision uses ambiguous and abstract concept whose meaningcould not be clarified with a judge's supplementary interpretation,thereby leaving it to the discretion of the enforcement agencies whetherto enforce the law to particular cases. This is in violation of therule of clarity derived from the principle ofnulla poena sine lege.

Concurring Opinion of Justices Ha Kyung-chull and Song In-jun

The meaning of the concept used in the instant statutory provi-sion of the Protection of Minors Act could be sharpened with a judge's supplementary interpretation. However, regulation of "comics that maycontribute to causing obscene or cruel behavior of minors or thatcould instigate minors to commit a crime even when they have someeducational or artistic value" is an excessive restriction of the rightto know of some minors such as college students who can makemature judgement for themselves. The instant provision prohibits andpunishes not only distribution or sales but also manufacture of allarticles or expression just because its contents might be harmful tominors. Though the need to protect minors is great, the instant pro-vision is not appropriate as a means to achieve this legislative pur-pose, and it infringes upon the freedom of speech and the press as wellas the freedom of science and arts. There is no balance between the private interest being infringed by the instant statutory provision andthe public interest it seeks to protect, and hence, the instant statutoryprovision imposes an excessive restriction.

3. "Moral character,", a term denoting a "considerate and benev-olent" character used in the instant statutory provision of the ChildWelfare Act, means internalization of morality and ethical standards. Morality or ethics, however, does not take a single form or meaningbecause of large difference in historical perspectives, religions, andvalue systems among citizens. Therefore, the limits of application ofthe instant statutory provision are not clearly defined. Furthermore,it is very difficult to identify what "could be seriously harmful" tochildren. What standard could be employed to differentiate what isseriously harmful to children's moral character and what may be"harmful" but not seriously harmful? Among those materials that arenot seriously harmful, how can one distinguish what could be seri- ously harmful while others could not be seriously harmful? Thus, the instant provision of the Child Welfare Act uses ambiguous andabstract concepts whose meaning could not be sharpened by a judge'ssupplementary interpretation, thereby leaving it to the discretion oflaw enforcement agencies whether to apply the law to particularcases. This is in violation of the rule of clarity derived from theprinciple ofnulla poena sine lege.

Provisions on Review

Protection of Minors Act(in force before being abrogated by Act No. 5817 on February 5, 1999)

Article 2-2 (Prohibition of Sales of Unwholesome Comics, etc.)

It is prohibited for any person to engage in activities describedin any of the following subparagraphs :

(ⅰ) Distribution, sales, donation, lending, or showing of comicsthat may contribute to causing obscene or cruel behavior ofminors or that could instigate

minors to commit a crime (here- inafter called "unwholesome comics") to minors, acts to aid suchactivities, or to possess, manufacture, import, or export un-wholesome comics for the purpose of aiding such activities.

(ⅱ) Omitted

Article 6-2 (Penal Provisions)

Any person in violation of Article 2-2 for the purpose ofprofit-making shall be punished by imprisonment for not more thantwo years or by a fine not exceeding five million won, incarceration from 1 day to 30 days or a minor fine.

Article 7 (Joint Penal Provisions)

Where the representative of a juristic person, or an agent, em-ployer or employee of a juristic person or individual commits anoffense provided under the provisions of Articles 6 or Article 6-2with respect to the business of such juristic person or individual, inaddition to the wrongdoer punished for violating the respective article,the juristic person or the individual shall also be punished by a fine as prescribed under the applicable Article.

Child Welfare Act(wholly amended by Act No. 6151 on January12, 2000)

Article 18 (Prohibited Acts)

It is prohibited for any person to engage in activities describedin any of the following subparagraphs:

(ⅰ) - (ⅹ) [omitted]

(ⅺ) Manufacture of books, periodicals, advertisements, or othermaterials that could be seriously harmful to children's moralcharacter, or distribution, sales, donation, exchange, exhibition, performance, or broadcasting of such articles.

Article 34 (Penal Provisions)

Any person who violates the provisions of Article 18 shall bepunished according to the classifications falling under the followingsubparagraphs:

(ⅰ) - (ⅲ) [omitted]

(ⅳ) Any person who commits an act specified in subpara-graphs 1 through 4, 6, or 11 shall be punished by imprisonmentfor not more than one year or a fine not exceeding one million won;

(ⅴ) [omitted]

Article 37 (Joint Penal Provisions)

Where the representative of a juristic person, or an agent, em-ployer or employee of a juristic person or individual commits anoffense provided under the provisions of Articles 34 or Article 35with respect to the business of such juristic person or individual, inaddition to the wrongdoer punished for violating the respective article,the juristic person or the individual shall also be punished by a fine as prescribed under the applicable Article.

Related Provisions

The Constitution

Articles 12(1), 13(1), 21(1), 22(1), 37(2)

Related Precedents

1. 12-1 KCCR 741, 98Hun-Ka10, June 29, 2000

6-2 KCCR 15, 93Hun-Ka4, etc., July 29, 1994

10-1 KCCR 640, 97Hun-Ba68, May 28, 1998

2. 94Do2413, Supreme Court, June 16, 1995

2000Do4372, Supreme Court, December 22, 2000

10-1 KCCR 327, 95Hun-Ka16, April 30, 1998

Parties

Requesting Court

Seoul District Court (97Cho4870)

Petitioner

Byun Woo-hyung and 16 others

Counsel : Kim Dong-hwan and 7 other

Original Case

Seoul District Court 97Go-Dan6217, 7393 (consolidated), Violation of the Protection of Minors Act and the Child Welfare Act

Holding

Article 2-2(ⅰ) and parts of Article 6-2 and 7 to punish viola-tion of Article 2-2(ⅰ) of the Protection of Minors Act (in forcebefore being abrogated by Act No. 5817 on February 5, 1999), andArticle 18(ⅺ) and parts of Article 34(ⅳ) and 37 to punish violationof Article 18(ⅺ) of the Child Welfare Act (wholly amended by ActNo. 6151 on January 12, 2000) are unconstitutional.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

Requesting petitioners are cartoonists and publishers of news-papers or other periodicals who publish the comic series. They wereindicted for violation of the Protection of Minors Act and Child WelfareAct, and were being tried at the Seoul District Court. In the courseof the trial, the petitioners argued that Article 2-2(ⅰ) and parts of Article 6-2 and 7 to punish violation of Article 2-2(ⅰ) of the Pro-tection of Minors Act, and Article 18(ⅺ) and parts of Article 34(ⅳ) and 37 to punish violation of Article 18(ⅺ) of the Child Welfare Actwere unconstitutional and made a motion for constitutional reviewof these provisions (97Cho4870). The presiding court granted therequest on August 27, 1999, and forwarded it to the ConstitutionalCourt for constitutional review.

B. Subject Matter of Review

The subject matter of review is the constitutionality of Article2-2(ⅰ) and parts of Article 6-2 and 7 to punish violation of Article2-2(ⅰ) of the Protection of Minors Act (in force before being abro-gated by Act No. 5817 on February 5, 1999), and Article 18(ⅺ) andparts of Article 34(ⅳ) and 37 to punish violation of Article 18(ⅺ) ofthe Child Welfare Act (wholly amended by Act No. 6151 on January 12, 2000). The provisions are as follows:

Protection of Minors Act (in force before being abrogated byAct No. 5817 on February 5, 1999)

Article 2-2 (Prohibition of Sales of Unwholesome Comics, etc.)

It is prohibited for any person to engage in activities described in any of the following subparagraphs:

(ⅰ) Distribution, sales, donation, lending, or showing of comicsthat may contribute to causing obscene or cruel behavior ofminors or that could instigate minors to commit a crime (here-inafter called "unwholesome comics") to minors, acts to aid such activities, or to possess, manufacture, import, or export unwhole-some comics for the purpose of aiding such activities.

Article 6-2 (Penal Provisions)

Any person in violation of Article 2-2 for the purpose ofprofit-making shall be punished by imprisonment for not more than twoyears or by a fine not exceeding five million won, penal detention ora minor fine.

Article 7 (Joint Penal Provisions)

Where the representative of a juristic person, or an agent, em-ployer or employee of a juristic person or individual commits anoffense provided under the provisions of Articles 6 or Article 6-2 withrespect to the business of such juristic person or individual, in ad-dition to the wrongdoer punished for violating the respective article, the juristic person or the individual shall also be punished by a fine as prescribed under the applicable Article.

Child Welfare Act (wholly amended by Act No. 6151 on January 12, 2000)

Article 18 (Prohibited Acts)

It is prohibited for any person to engage in activities describedin any of the following subparagraphs :

(ⅺ) Manufacture of books, periodicals, advertisements, or othermaterials that could be seriously harmful to children's moralcharacter, or distribution, sales, donation, exchange, exhibition, performance, or broadcasting of such articles.

Article 34 (Penal Provisions)

Any person who violates the provisions of Article 18 shall bepunished according to the classifications falling under the followingsubparagraphs:

(ⅳ) Any person who commits an act specified in subpara-graphs 1 through 4, 6, or 11 shall be punished by imprison-ment for not more than one year or a fine not exceeding onemillion won ;

Article 37 (Joint Penal Provisions)

Where the representative of a juristic person, or an agent, em-ployer or employee of a juristic person or individual commits an of- fense provided under the provisions of Articles 34 or Article 35 withrespect to the business of such juristic person or individual, in ad-dition to the wrongdoer punished for violating the respective article, the juristic person or the individual shall also be punished by a fine as prescribed under the applicable Article.

2. Opinions of the Requesting Court and Related Parties

A. Reason for Requesting Constitutional Review

The instant statutory provision of the Protection of Minors Actemploys uncertain concepts carrying several different denotations, and the instant statutory provision of the Child Welfare Act also uses anextremely ambiguous and abstract expression "could be seriously harm-ful to children's moral character." It is impossible to identify what types of published materials such as comics or books would be sub-ject to regulation under these provisions. Therefore, these provisionsare against the rule of clarity derived from the principle ofnullapoena sine lege.

B. Opinions of the Minister of Justice and Chief

Prosecutor of the Seoul District Prosecutors Office

The instant statutory provisions of the Protection of Minors Actand the Child Welfare Act employ concepts with definite meanings,and they are not unclear when interpreted with due consideration to the legislative intent and the context.

3. Review

A. Principle ofNulla Poena Sine Legeand Rule of

Clarity

The central argument of the case concerns whether the instantprovisions of the Protection of Minors Act and the Child WelfareAct are in violation of the rule of clarity derived from the principleofnulla poena sine lege.

The principle ofnulla poena sine legerequires the elements ofa crime and its punishment be determined in the form of a legisla-tive act. The rule of clarity, derived from the principle ofnulla poenasine legerequires that elements constituting a crime be clearly definedin order to enable ordinary citizens to recognize what action is pro-hibited by law and what are penalties for such violation so that they can determine the course of their action accordingly (12-1 KCCR 741,748, 98Hun-Ka10, June 29, 2000). A statutory provision describingelements of a crime broadly, while requiring supplementary interpre- tation by a judge for clarification of some concepts, is not automa-tically in violation of the constitutional requirement of the rule ofclarity for criminal statutes. However, if a provision prohibiting andpunishing particular actions is unclear because of ambiguity or ab-stractness in description of elements of a crime, citizens will beunable to tell what activities are prohibited, and whether an activity constitutes a crime or not will be largely dependent on the arbitraryinterpretation of law by a judge. This would be against the require-ments of the principle of the rule of law which aims to protectfreedom and rights of citizens through application of the principle ofnulla poena sine lege(6-2 KCCR 15, 32 93Hun-Ka4, etc., July 29,1994; 10-1 KCCR 640, 655, 97Hun-Ba68, May 28, 1998).

B. Unconstitutionality of the Instant Provision of the

Protection of Minors Act

The instant provision of the Protection of Minors Act punishescertain activities concerning "unwholesome comics" which are definedas "comics that may contribute to causing obscene or cruel behavior of minors or that could instigate minors to commit a crime."

(1) Let us first look at one part of the definition of "unwhole-some comics"

used in the article 2-2 of Protection of Minors Act,namely, "that may contribute to causing obscene or cruel behavior ofminors."

"Obscenity,", according to the precedents, means "description ofsexual matters that aims to stimulate sexual desire of ordinary peopleagainst accepted standards of morality in an offensive or repulsivemanner" (94Do2413, Supreme Court, June 16, 1995; 2000Do4372, SupremeCourt, December 22, 2000), or "a naked and unabashed sexual ex-pression which distorts human dignity or humanity and which appealsonly to the prurient interest with no literary artistic, scientific orpolitical value" (10-1 KCCR 327, 341, 95Hun-Ka16, April 30, 1998). Thus, the normative concept of obscenity can be sharpened with ajudge's supplementary interpretation. The normative concept of cruelty,however, has not yet been clearly adjudicated by the court. In thedictionary cruelty is defined as "callous indifference to suffering, orruthlessness". Such definition can be applied to a wide range offeelings, and actions of minors, and it includes a whole gamut ofbehaviors ranging from crimes including murder or physical violence(e.g. Article 5(2)(i) of Outdoor Advertisements, etc. Control Act;Article 6(1) of Animal Protection Act) to internal moral decisions ofindividuals based on individual ethical, religious, or ideological back-ground. Such a broad definition will be likely to lead to arbitraryinterpretation and execution of laws by law enforcement agencies andjudges.

The instant statutory provision prohibits and punishes those acti-vities concerning comics that "may contribute" to causing cruel be-havior of minors. To "contribute" is to help achieve something. Usedin the instant statutory provision, to "contribute to causing cruel be-havior of minors" can be interpreted as to "help minors develop obsceneor cruel attitude." This could mean strengthening of existent obsceneor cruel attitude, weakening of internal restraints that have deterredrealization of obscenity or cruelty, or negating the value system builtupon respect for purity and geniality. Adding 'may' which means 'belikely to' or 'be possible to, the instant statutory provision could beused to penalize to subject criminal punishment publishing of histori-cal comics that have made objective description of individuals andgroups, of race and nation, and of humanity without clear distinction between good and evil or comics of a sexual nature that are accept- able to the general public. If the government decides to regulate all activities falling under the prescription of the instant provision, thescope of punishment would be too wide; and if it only regulates certain kinds of activities, it is unclear what activities would beprohibited under the present law.

(2) Next, let us look at the latter part of the definition of "un- wholesome comics" used in Article 2-2 of the Protection of MinorsAct, namely, "that could instigate minors to commit a crime".

Let us not go into details about whether "to instigate someoneto commit a crime" is a concept associated with a singular meaning. It is impossible to determine whether the instant provision would be applied to punish publication of only those comics that actually lead to "the commitment of a crime knowingly or recklessly" or that led to activities that are interpreted as elements of a crime without anyconsideration of the intention of the wrongdoer. It is also unclearwhether the provision would be applied to prosecute the publicationof comics that actually bring about any attempts at a crime, anyattempts at completion of a crime, or only successful completion of acrime. It is also unclear and impossible to determine if publicationof only those comics actively promoting ill behavior is subject to reg-ulation, or publication of comics which passively loosen individualcommittment to abide by the law can also be regulated; or whether publication of only those comics whose contents actively encouragecommittment of a crime is punishable or whether publication of comics which only introduce a criminal case from the victim's perspective butthat could lead some minors to mimic the crime with some scrutiny is also subject to punishment under the instant statutory provision.

(3) Thus, the instant provision uses ambiguous and abstract con-cept whose meaning could not be sharpened with a judge's supple-mentary interpretation, thereby leaving it to the discretion of lawenforcement agencies whether to enforce the law to particular cases.This is in violation of the rule of clarity derived from the principleofnulla poena sine lege.

C. Unconstitutionality of the Instant Provision of the

Child Welfare Act

The instant article of the Child Welfare Act prohibits and punishesmanufacture and publication of books, periodicals, advertisements, orother materials that could be seriously deleterious to children's moralcharacter, or distribution, sales, donation, exchange, exhibition, perfor-mance, or broadcasting of such articles. "Moral character", a term denoting "considerate and benevolent" character used in the instantstatutory provision of the Child Welfare Act, means the internaliza-tion of morality and ethical standards. While morality or ethics couldtake a definite form or meaning for individual citizens according totheir historical perspectives, religion, and value systems, it is impos- sible to assign a singular meaning to morality for all law enforcementagencies and citizens. Therefore, the limits of application of the instantstatutory provision are not clearly defined. Even if children's inter-nalized virtue could be defined, it is very difficult to identify what"could be seriously harmful" to children. What standard could beemployed to differentiate what is seriously harmful to children's moralcharacter and what may be harmful but not seriously harmful? Amongthose materials that are not seriously harmful, how can one dis-tinguish what "could be" seriously harmful while others "could notbe" seriously harmful?

Thus, the instant provision of the Child Welfare Act uses am- biguous and abstract concept whose meaning could not be clarified by a judge's supplementary interpretation, thereby leaving it to the discretion of law enforcement agencies whether to apply the law toparticular cases. This is in violation of the rule of clarity derivedfrom the principle ofnulla poena sine lege.

4. Conclusion

The instant statutory provisions of the Protection of Minors Actand the Child Welfare Act are unconstitutional, and the Court declaresso by the consensus of all justices except Justices Ha Kyung-chulland Song In-jun who wrote a concurring opinion on the adjudication of the instant statutory provision of the Protection of Minors Act.

5. Concurring Opinion of Justices Ha Kyung-chull and

Song In-jun

While the majority of Justices concluded that the instant provi-sion of the Protection of Minors Act is in violation of the rule ofclarity derived from the principle ofnulla poena sine lege, we dis- agree because we think that the meaning of the concept used in the instant statutory provision of the Protection of Minors Act could besharpened with a judge's supplementary interpretation. We are writinga concurring opinion because we believe that the scope of applicationof the instant article of the Protection of Minors Act is too broad, thereby excessively restricting the people's right to know and thefreedom of speech and the press as well as the freedom of learningand the arts.

Comics whose contents have political, religious, literary, artistic,educational, medical, scientific, or academic value are not excludedfrom regulation under the instant provision of the Protection of Minors Act. While these comics may be enlightening or instructive, therebycontributing to the formation of a sound personality of minors, or theymay contribute to causing obscene or cruel behavior of minors or thatthey lead minors to develop certain capacities to achieve their full potentials, the instant provision could prohibit access of minors tothese comics as long as there is a doubt whether these comics maycould instigate minors to commit a crime. Such a comprehensive ban is an excessive restriction of the right to know of some minors suchas college students who can make mature judgement for themselves.

Since the instant provision is legislated to protect minors, themeans of regulation should be limited to such narrowly defined meansas blocking the chain of supply to minors. A comprehensive ban onpublication and circulation of certain materials for the purpose ofjuvenile protection is excessive because it debases level of adults' rightto know to that of a juvenile's, thereby violating the adults' right toknow (10-1 KCCR 327, 354, 95Hun-Ka16, April 30, 1998).

The instant statutory provision of the Protection of Minors Actprohibits and punishes possession, manufacture, import, or export of unwholesome comics. However, as the Act did not adopt the rating system that the Juvenile Protection Act has adopted, it is impossibleto prevent access of minors to such comics through regulation of thechain of supply. Because creation and publication of comics could bemade subject to punishment under the Act if the law enforcementagency deems that the contents could be deleterious to minors,cartoonists or publishers would choose to make contents of comicsappropriate for viewing by minors rather than risk punishment.

Although the readers of newspapers or periodicals published byrequesting petitioners are mostly adults, publication of such materials could be subject to punishment under the instant provision since suchact could be deemed as an act to provide minors with the access to the unwholesome comics because the current supply market does nothave an effective barrier to block access of minors to such materials.Although the need to protect minors is great, the instant provisionis not appropriate as a means to achieve this legislative purpose, andit infringes upon the freedom of speech and the press as well as thefreedom of science and arts. There is no balance between theprivate interest being infringed by the instant statutory provision andpublic interest it seeks to protect, and hence, the instant statutoryprovision imposes an excessive restriction.

For these reasons, we are writing a concurring opinion expressingour view that the instant statutory provision is in violation of ruleagainst excessive restriction, thus it is unconstitutional.

Justices Yun Young-chul (Presiding Justice), Han Dae-Hyun, Ha Kyung-chull, Kim Young-il, Kwon Seong, Kim Hyo-jong, Kim Kyoung-il, Song In-jun, and Choo Sun-hoe (Assigned Justice)