2020Do8978 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production and distribution of obscene materials)

(p) Establishment of gambling spaces, promotion of utilization of information and communications networks, and information protection;

Violation of the Act on the Protection, etc. of obscenity (obscenity)

Defendant

Defendant

Attorney Choi Dong-dong et al.

Seoul Central District Court Decision 2020No60 Decided June 18, 2020

September 24, 2020

The appeal is dismissed.

The grounds of appeal are examined.

1. Determination on the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials)

A. Article 11(2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 17338, Jun. 2, 2020) provides that a person who openly displays child or juvenile pornography for profit-making purposes shall be punished by imprisonment with prison labor for not more than ten years.

"Profit-making purpose" under the above provision refers to an intention to pursue an intention or profit to obtain property benefits in the course of a specific violation prescribed by the above Act (see, e.g., Supreme Court Decision 2003Do8003, Mar. 26, 2004). This refers to the purpose of widely obtaining economic benefits, and the purpose of such purpose is not the direct consideration for an offense such as distribution of child and juvenile pornography, but the purpose of profit-making is recognized in cases of profits indirectly obtained through an offense (see, e.g., Supreme Court Decisions 97Do2368, Dec. 12, 1997; 2008Do3970, Oct. 23, 2008; 2017Do7134, Aug. 18, 2017).

Therefore, if a person operating a private gambling site opens an open holding room of 000 or more and posts children and juvenile pornography videos, up to a number of unspecified persons through 1:1, he/she joined the open holding room by advertising the gambling site operated by him/her at the open holding room and inducing members to join the above gambling site by advertising the gambling site by using the name, telephone number, etc. entered at the time of his/her subscription and approving the subscription of the above gambling site, the act of opening the gambling space for profit-making purposes as well as the act of openly displaying children and juvenile pornography for profit-making purposes.

B. For the reasons indicated in its holding, the lower court convicted the Defendant of the facts charged that the Defendant openly displayed child or juvenile pornography for profit by opening an open ○○○○○○○○○ and posting child or juvenile pornography on a total of ten occasions in collusion with employees, including the co-defendant 1 of the lower court, on the premise that the Defendant’s intentional act, conspiracy, and purpose of profit-making was recognized. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on “the extent of the principle of free evaluation of evidence in violation of logical and empirical rules,” or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on “the purpose of profit-making” under Article 11(2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 173

2. Judgment on the additional collection

For reasons indicated in its holding, the lower court additionally collected KRW 1,163,469,00 from the Defendant. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the calculation

3. As to the assertion of unreasonable sentencing

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years is imposed, an appeal on the grounds of unfair sentencing shall be allowed. In this case where a more minor sentence is imposed against the defendant, the argument that the sentence is too unreasonable is not a legitimate ground

4. Conclusion

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

Supreme Court Decision 201

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan