In cases where a video product produced falls under a video product that objectively expresses the contents of a sexual act due to the appearance of a child or juvenile, whether it constitutes “production” of “child or juvenile pornography” under Article 8(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse even if it is taken or produced for the primary purpose with the consent of the relevant child or juvenile, even if it is produced for the primary purpose (affirmative)

While Article 2 Subparag. 5 and 4 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 Act”), Article 8(1) of the same Act provides that “child and juvenile pornography” shall be punished for producing child and juvenile pornography, and there is no addition as to whether the intent of production, etc. or obscene material was taken against the will of the child and juveniles as a requirement for the establishment of the crime.

This is to protect children and juveniles from sexual abuse or exploitation, while also to protect children and juveniles from sexual abuse and exploitation, and to ensure that children and juveniles grow up to healthy members of society, characteristics of children and juveniles who are mentally familiar, dynamic, economicly independent, and children and juveniles, and children and juveniles pornography directly cannot be cured, and they encourage sexually distorted perception and abnormal values to those who view them from the production stage, so it is necessary to protect children and juveniles from sexual abuse and from the potential sexual crime resulting from the development of information and communications media such as the Internet, and if obscene materials are produced once they are produced, they do not constitute “the act of using children and juveniles” under the former Child and Juveniles Act or “the act of using children and juveniles cannot be objectively defined as “the act of using children and juveniles” under Article 8 of the Child and Juveniles Act for the purpose of keeping them objectively regardless of their intention.

However, in exceptional cases where a perpetrator, who is a child or youth, produces images, etc. corresponding to “child or youth pornography” for himself/herself for personal possession or others corresponding thereto, the production of images constitutes a legitimate exercise of a person’s right to self-determination in private life, which constitutes the right to personality, the right to pursue happiness, or the right to privacy, etc., guaranteed by the Constitution, may be deemed unlawful. Since children and juveniles have not sufficiently formed sexual values and judgment ability and lacks the ability to exercise their right to sexual self-determination and to protect himself/herself, whether the production of images constitutes such act should be determined with careful consideration of the child or youth’s age and intellectual and social capacity, the purpose, motive and background of production, the purpose and background of production, whether the consent or involvement of children and juveniles was made voluntarily and seriously, the relationship with other persons appearing in children, juveniles, images, etc., and the content and attitude of sexual acts expressed in the image, etc.

Articles 10 and 17 of the Constitution of the Republic of Korea; Articles 1, 2 subparag. 4 and 5, and 8(1) (see current Article 11(1)) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012)

Defendant and the respondent for attachment order

Defendant and the respondent for attachment order

Law Firm Enhancement, Attorneys Fishing Incarceration et al.

Daejeon High Court Decision (Cheongju), 2014No64, 2014No5 decided August 14, 2014

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Defendant case

A. As to the production of child and juvenile pornography

1) Article 8(1) 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 Act”) provides that a person who produces, imports, or exports child or juvenile pornography shall be punished by imprisonment for a fixed term of not less than five years. Article 2 Subparag. 5 of the same Act provides that “child or juvenile pornography refers to an act falling under any of subparagraph 4 due to the appearance of a person or representations who may be perceived as a child, youth, or youth, or any other sexual act, which is in the form of film, video, game software, or image, etc. through a computer or other communications medium, and Article 8(4) of the same Act provides that “any similar act using part of a person’s body, such as sexual intercourse, b. the mouth, etc., or any similar act that causes sexual humiliation or aversion of the general public, all or part of sexual humiliation or aversion.”

Even though Article 2 subparag. 5 and 4 of the former Act provide for the meaning of “child or juvenile pornography”, Article 8(1) of the same Act provides that the act of producing child or juvenile pornography shall be punished, and there is no addition to whether the intent of production, etc. or the obscene material has been taken against the will of the child or juvenile as a requirement for the establishment of the crime.

This is to protect children and juveniles from sexual abuse or exploitation, while protecting children and juveniles from sexual abuse or exploitation, and to grow up to healthy members of society, the legislative purpose and purport of the former Infant Act intending to have children and juveniles accountable and healthy members of society, characteristics of children and juveniles who are mentally well-founded, dynamic, economicly independent, and children and juveniles, and child and youth pornography directly provide victims with mental suffering which are difficult to cure, and encourage them to have distorted perception of sex and abnormal values from their production stage. Thus, it is necessary to protect children and juveniles from potential sexual crimes arising from deeming them as sexual objects by fundamentally blocking them from their production stage. Considering that obscene materials are produced once they are produced through the development of information and communications media such as the Internet, it cannot be ruled out that they do not constitute a “child and juveniles’ act” under Article 8(1) of the former Child and Juveniles Act or that they cannot be objectively provided with obscenity, regardless of their intention, or that they cannot be provided with obscenity materials for distribution at any time, regardless of their production.

However, in exceptional cases where a perpetrator, who is a child or juvenile, produces or similar images falling under “child or juvenile pornography” for himself/herself for personal possession, the production of images constitutes a legitimate exercise of the right to self-determination of a person with a sporadic personality, the right to pursue happiness, or the right to privacy, which is guaranteed by the Constitution, may be deemed unlawful. Since children and juveniles have not sufficiently formed sexual values and judgment ability and lacks the ability to exercise his/her right to sexual self-determination and to protect himself/herself, whether the production of images constitutes such act should be determined with careful consideration of the child or juvenile’s age and intellectual and social capacity, the purpose, motive and background of production, the purpose and motive of production, the existence of forced force, deceptive scheme or consideration in the course of shooting, whether the consent or involvement of children and juveniles was made voluntarily and seriously, the relationship with other persons appearing in children, juveniles, images, etc., and the contents and attitude of sexual acts expressed in the image, etc.

2) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the Defendant and the respondent for an attachment order (hereinafter “Defendant”) as a teacher of a married elementary school with 30 victims from the beginning, with the knowledge that they were children and juveniles, have access to them for sexual acts, and only several times have contacted with them through a smartphone hosting cryping, even though they were aware that they were children and juveniles. The Defendant had met several victims, including children who reach 12 years of age within the short period, and kept them in a video-recording, and the Defendant had taken and stored some of them in the video-recording. During the act indicated in the attached list at the time of the original trial, there was a dynamic sexual act such as gathering fingers in the victim’s resistance in the victim’s resistance, and the Defendant did not appear to have consented to the victim’s consent at the time of the video-recording examination by the investigative agency, and even if the victim did not appear to have been aware of this fact, the victim’s photograph or photograph was never known.

Examining these facts in light of the legal principles as seen earlier, the Defendant’s act of photographing videos such as the time of original adjudication constitutes the production of child and juvenile pornography as provided by Article 8(1) of the former Cheongbu Act. Even if the Defendant obtained consent from certain victims, it is difficult to view that children and juveniles, who are sufficiently decentralization, voluntarily and seriously exercise the right to self-determination on sexual acts, and thus, it does not constitute grounds for excluding illegality.

Therefore, the court below is just in finding the Defendant guilty of this part of the facts charged, and contrary to what is alleged in the grounds of appeal, the court below 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 principles on the production of child

3) Meanwhile, in light of the evidence duly admitted by the lower court, the lower court’s determination that the appearing persons appearing in each video file at the time of the original adjudication constituted “child or juvenile” under Article 8(1) of the former ABA is justifiable, and it did not err by misapprehending the legal doctrine as otherwise alleged in the grounds of appeal.

B. As to the legal rape of a minor

Article 16 of the Criminal Act provides that "the act of misunderstanding that one's own act does not constitute a crime under Acts and subordinate statutes shall not be punishable only when there is a justifiable ground for such misunderstanding." It does not mean a simple legal site, but it means that a person is not punishable if there is a justifiable ground for misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding - misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding - misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding - misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding - misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding misunderstanding - misunderstanding misunderstanding misunderstanding see Supreme Court Decision 2005Do3750, Jan. 13, 2006 207.

Examining the reasoning of the judgment below in light of the records, it cannot be deemed that there is a justifiable ground to believe that the defendant, an elementary school teacher, had children and juveniles under 13 years of age with sexual awareness, and that sexual acts do not constitute a crime. Therefore, this part of the ground of appeal cannot be accepted.

C. Regarding 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 not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. Thus, in this case where a minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable cannot

2. As to the case of the request for attachment order

Examining the reasoning of the judgment below in light of the records, it is just that the court below ordered the defendant to attach an electronic tracking device for 6 years, considering that the defendant is likely to recommit the recidivism of sexual crimes and sexual crimes, and there is no violation of law as alleged in the grounds of appeal.

3. Conclusion

All appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)