Criteria for determining whether a person who can be recognized as a child or juvenile is a child or juvenile pornography under Article 2 subparagraph 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse.

In order to protect individual freedom and rights from arbitrary exercise of the State’s penal authority, penal provisions should be interpreted strictly, and excessively expanded or analogical interpretation of the meaning of penal provisions in the direction unfavorable to the defendant is not allowed to be contrary to the principle of no punishment without the law. In light of the definition of child and youth pornography in Article 2 subparag. 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012; hereinafter “former Cheongbu Act”), the phrase “persons or representations that can be perceived as children or juveniles” is somewhat ambiguous, and the scope of punishment is likely to be excessively wide, and the meaning of punishment is unreasonable in light of the legislative purpose and language of “child and youth pornography’s appearance” as well as the legislative purpose and contents of “the appearance of children or youth’s pornography”, which can be objectively perceived as “the appearance of children or youth’s pornography” in light of the legislative purpose and contents of “the appearance of children or youth’s pornography.”

Article 12(1) of the Constitution of the Republic of Korea, Article 1(1) of the Criminal Act, Article 1 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012); Articles 1, 2 subparag. 1 and 5, and 8(4) (see current Article 11(3)); Article 2 subparag. 5 of the Act on the Protection of Children and Juveniles against Sexual Abuse

Defendant

Defendant

Incheon District Court Decision 2012No3737 Decided April 12, 2013

The judgment below is reversed, and the case is remanded to Incheon District Court Panel Division.

The grounds of appeal are examined.

1. The judgment of the court below

The lower court affirmed the judgment of the first instance court that held that each of the instant images constituted the “child or juvenile pornography” of the former Act on the Protection of Children and Juveniles against Sexual Abuse, on the ground that: (a) whether a person constitutes a “person who may be perceived as a child or juvenile” in relation to a child or juvenile pornography as prescribed by the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012; hereinafter “former Act”); (b) whether the general public can identify the person or representations as a child or juvenile in consideration of the specific circumstances described in the obscene material, method of expression, etc. based on the “content of obscene material”; and (c) comprehensively on the evidence adopted by the first instance court, comprehensively taking into account the evidence adopted, the character of the person who may be perceived as a juvenile appeared in the same video and describe that the person is obscene as a student, and thus, the ordinary person can be perceived as a child or juvenile.

2. The judgment of this Court

However, we cannot accept the above decision of the court below for the following reasons.

Article 2 Subparag. 1 of the former ASEAN defines “child or youth pornography” as “those under the age of 19: Provided, That any person who distributes, displays, or openly displays child or youth pornography in the form of a film, video, game software, or picture or image, etc. by appearing in persons or representations who may be perceived as a child, youth, or youth,” and Article 2 Subparag. 5 of the same Act defines “child or youth pornography” as “a person who commits an act falling under any of subparagraph 4 or commits any other sexual act in the form of a film, video, game software, computer, or any other communications medium,” and Article 8(4) of the same Act defines as “a person who distributes, displays, or openly displays, displays, or shows child or youth pornography in the form of a film, video, game software, or any other communications medium.”

① In order to protect individual freedom and rights from arbitrary exercise of the State’s penal authority, penal laws should be interpreted strictly and excessively or analogically interpreted in the direction unfavorable to the defendant is not permitted to be contrary to the principle of no punishment without the law. ② The phrase “persons or representations that can be perceived as children or juveniles” in the definition of child or youth pornography under Article 2 subparag. 5 of the former Cheongbu Act is somewhat ambiguous, and there is a concern that the scope of punishment is too wide without meaning as arbitrary determination by the investigative agency. In order to clarify its meaning, the former Cheongbu Act was amended by Act No. 11572, Dec. 18, 2012; in addition, the phrase “clearly perceived persons or representations that can be clearly perceived as children or juveniles” should not be objectively perceived as the appearance of children or juveniles in light of the legislative purpose and amendment history of the Cheongbubu Act; and the structure of the law and regulations; and the appearance of children or juveniles as the appearance of children or juveniles’ pornography in order for them to be objectively perceived and apparent.

According to the evidence adopted by the first instance court maintained by the court below, one of the above videos of this case appears to be a video recording of sexual acts by some women who are flives and other women who are flives similar to school uniforms respectively, but the whole of the above videos was not adopted and investigated as evidence, but only a few heads of the above video pictures were adopted and investigated as evidence, and there is no background information about the contents, origin, process of production, the identity of the appearing person, etc. of each of the above videos, and each of the above appearing characters can not be ruled out the possibility of adults when considering the appearance of appearance or physical flives. In light of the above legal principles, it is difficult to conclude that each of the above appeared as a "person who can be perceived as children or juveniles" as defined in Article 2 subparagraph 5 of the former ASEAN Act.

Nevertheless, the lower court determined otherwise, that it is reasonable to determine whether a person can be perceived as a child or juvenile pornography based on the “content of obscene materials” in view of the specific situation, method of expression, etc. described in the obscene materials, etc., based on the “content of obscene materials,” and on the grounds indicated in its reasoning, determined each of the instant videos as a child or juvenile pornography. In so doing, the lower court erred by misapprehending the legal doctrine on “child or juvenile pornography” under Article 2 subparag. 5 of the former ASEAN Act, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)