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(영문) 수원고등법원 2019.07.18 2019노86

The judgment of the court below is reversed.

The punishment of the accused shall be three years of imprisonment.

Sexual assault, 40 hours against the defendant.


Summary of Grounds for Appeal

As to the misconception of facts or misapprehension of legal principles (as to the production, distribution, etc. of obscene materials), each video recording (as to the video recording in the future) recorded in the facts charged was taken for private possession and storage, it cannot be deemed that the Defendant’s act of photographing a child or juvenile pornography is a production of a child or juvenile pornography without falling under the child or juvenile pornography.

In addition, the defendant's act of photographing each of the video works of this case was conducted with free and voluntary consent from the victim with a reasonable sense, such as sufficiently understanding the meaning of the right to sexual self-determination, so there is no illegality.

Nevertheless, the lower court found the Defendant guilty of this part of the facts charged by misapprehending the legal doctrine.

The court below's sentence of unfair sentencing (three years of imprisonment, etc.) against the defendant is too unreasonable.

According to Article 59-3 of the Act on Welfare of Persons with Disabilities (Act No. 15904), which was amended on December 11, 2018 and enforced on June 12, 2019 (Act No. 15904), where a person is sentenced to a sexual crime under Article 2(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes or a sex offense against a child or juvenile under subparagraph 2 of Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse, an employment restriction order may be issued within the extent not exceeding 10 years against welfare facilities; however, an employment restriction order may not be issued in cases where the risk of recidivism is remarkably low or where there are special circumstances that prevent employment from

Before the amendment, the relevant provisions of the Act stipulate that employment shall be restricted automatically for 10 years without the issuance of a separate employment restriction order.

And according to Article 2 of the Addenda to Act on Welfare of Persons with Disabilities (Act No. 15904, Dec. 11, 2018), the above amended provisions shall be prior to its enforcement.