2013No1785 Violation of the Act on the Regulation of Amusement Businesses Affecting Public Morals

A

Prosecutor

Current formation (public prosecutor acting on behalf of the public prosecutor, indictment, and public trial)

Attorney F (National Assembly)

Gwangju District Court Decision 2013Dadan2569 Decided August 14, 2013

November 2013, 200

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The court below erred by misapprehending the legal principles, which acquitted the defendant on the ground that the defendant's sexual intercourse with the defendant's display of the atmosphere for men (hereinafter referred to as "the adult product of this case") constitutes obscene materials.

2. Determination

A. The term “obscenity” means an article which stimulates, plays, or satisfies a sexual desire and which undermines the ordinary public’s normal sense of sexual humiliation and goes against the good sexual intent. Whether an article constitutes obscene material ought to be objectively determined as to the article itself regardless of the offender’s subjective intent, distribution, display, etc. (see Supreme Court Decision 2003Do988, May 5, 2003; 2003Do988, Jun. 16, 200).

In determining whether a expressive material is obscene, an objective and normative assessment should be made in accordance with the sound social norms of the society, not the producer’s subjective intent, but the average person’s perspective, to the extent that it can be deemed that, in light of the overall observation and evaluation of a expressive material, it seriously undermines and distorted the dignity and value of a person who has the personality to be respected and protected, beyond the mere degree of harming or impeding the expression (see, e.g., Supreme Court Decision 2006Do3558, Mar. 13, 2008);

B. A male self-help organization, such as the instant adult goods, is at the level of sexual interest or satisfaction of its essential function and purpose. Thus, it cannot be readily concluded that the act of reproducing women’s national father for such function and purpose is an obscene material. Whether a certain material constitutes an obscene material or not should be objectively determined on the basis of the material regardless of the display place, as seen earlier. Even if the place where the instant adult product was displayed is prohibited from juveniles’ access, such circumstance cannot be viewed as an obscene material or not).

Whether such an adult product is obscene ought to be determined based on whether a third party, who is not an employer, by comprehensively taking into account the following factors into account, generally accepted social norms, sees his/her adult product as a result of sexual humiliation or sexual humiliation.

(1) Whether the adult product has been reproduced in the shape that is almost the same as the actual gender flag of a woman because it has been described or is colored (such as red color, conspiracy, color, etc.) similar to the actual gender of the woman in a tight part (the inside structure, name, and expression of three-dimensional image, etc. of a sex instrument or an resistance), such as sound, conspiracy, and an expression of three-dimensional image, etc.

② In addition to the reproduction of a female’s sex organ as seen above, the body of the said female is reproduced to the extent that the entire form of the said female’s adult product can be seen as at least two (2) and considerable size 3). Whether a material similar to a human body is being used for a sense of quality, promotion, or color.

③ Whether, in light of the fact and fact, (2) such as paragraph (1) and the expression or description of an explicit sexual injury or act, the general public, at the same time, had suffered sexual interest in the appearance of a woman and actually committed a sexual act, i.e., sexually connected act of the woman, rather than a functional element of the adult product.

C. According to the evidence duly adopted and examined by the lower court and this Court, the following circumstances are recognized.

① The instant adult product is composed of a woman’s sexual flag, port, or her but with a fluence similar to a woman’s skin, fluence, or color. However, it does not de facto describe a detailed part of the outer part, such as the inside structure, name, and three-dimensional lux, etc. of a woman’s sexual organ, but rather does not have a separate color on the part of a woman’s sexual organ. As such, it is generally reproduced by the shape and color that has a substantial difference from the actual part of the woman’s sexual organ.

② Comprehensively taking account of the degree and overall appearance of the instant adult product’s reproduction, it is difficult to view that the general public expressed a factual and explicit sexual injury or behavior to the extent that the actual female’s body or sexual act, i.e., the immediate average.

In light of the above circumstances in light of the aforementioned criteria, even if the adult product of this case helps feel indecent and disturbed, it is difficult to see that it is sexually expressed or expressed sexual humiliation or acts in an explicit manner to the extent that it can be deemed to have seriously undermined and distorted human dignity and value, and thus, it does not constitute obscene goods that, solely on the basis of social norms, stimulate or stimulate sexual humiliation, thereby impairing the ordinary public’s normal sense of sexual humiliation, and contrary to the concept of sexual morality.

Therefore, the judgment of the court below which acquitted the defendant is just and there is no error by misapprehending the legal principles, and the prosecutor's assertion is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Presiding Judge and senior containers

Judges Park Sang-soo

Judges Jeong-jin

1) A separate discussion on legislation that exceptionally allow the sale of male self-helps to adults in a limited place is set aside.

Since it cannot be a standard for determining this obscenity, it shall be taken into account only as an element of sentencing.

2) There is room to regard the body of a woman as obscene material, if her mar, but only her part of the woman’s body, if there is a sexual description of the same level as that of the above (1).

However, even if the same level of sexual flag has been described, only the female sexual flag is reproduced in the form of the original pole, etc. that cannot be viewed as part of human body.

If so, it can not be seen as obscene material.

3) Even if the size of adult products does not reach the actual size of the woman, it is deemed that the overall quantity of the adult products is the size to the degree that the perception similar to the real.

If the body, including the arms and legs, is of a size less than 20 cm in total, or is of a female gender body;

When comparing, the whole form of adult products is similar to the real, such as the case where the proportion of other physical parts is extremely low or the shape is not practical.

If it is not a sense, it shall not be applicable to it.