The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

The above fine shall not be paid by the defendant.

1. The summary of the grounds for appeal reveals that the Defendant immediately deleted the files recorded in the list of crimes that he/she was downloaded after viewing, and is currently unable to restore, and thus is in possession of the aforementioned obscene materials.

Although the Defendant cannot be seen, the lower court found the Defendant guilty of the instant facts charged on the ground that it constituted “a person who knowingly possesses it as obscene materials for the use of children or juveniles” as prescribed by Article 11(5) of the Act on the Protection of Juveniles against Sexual Abuse. In so determining, the lower court erred by misapprehending the legal doctrine.

2. We examine ex officio prior to the judgment on the grounds for ex officio appeal.

Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15352, Jan. 6, 2018; hereinafter referred to as “sex offense”) provides that a person, who was sentenced to a punishment or a medical care and custody for committing a sex offense against a child or a sex offense against an adult (hereinafter referred to as “sex offense”) shall not operate a facility, institution, or place of business under each of the following subparagraphs (hereinafter referred to as “child-related institution, etc.”) or shall not provide a child-related institution, etc. with employment or actual labor, and uniformly sets the period during which it is impossible to provide its operation, employment, or actual labor (hereinafter referred to as “restricted period”).

However, Article 56 of the Act on the Protection of Children and Juveniles from Sexual Abuse, which was amended by Act No. 15352, and enforced July 17, 2018, provides that where a court declares a punishment or a treatment and custody for sex offenses, it shall sentence the order to operate a juvenile-related institution, etc., or not to provide employment or actual labor to a child-related institution, etc., during the employment restriction period (hereinafter “employment restriction order”) simultaneously with a judgment on a sex offense case: Provided, That where the risk of recidivism is remarkably low or there are other special circumstances in which employment should not be restricted.

(b) make a determination.