The meaning of “obscenity” under Article 243 of the Criminal Act and the degree of expression to be evaluated as “obscenity”

Article 243 of the Criminal Act

Supreme Court Decision 2013Do15643 Decided May 29, 2014, Supreme Court Decision 2013Do6345 Decided June 12, 2014

Defendant

Defendant

Changwon District Court Decision 2013No683 decided July 19, 2013

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

The grounds of appeal are examined.

“obscenity” as stipulated in Article 243 of the Criminal Act refers to an act contrary to the concept of sexual morality by stimulating ordinary people’s sexual desire, causing sexual humiliation and undermining normal sexual humiliation. Therefore, in order to evaluate a certain object as obscene, it should be objectively expressed or expressed to the extent that the overall observation of the object does not merely feel that it would be indecent, but rather would have seriously damaged and distorted human dignity and value.

In light of the following circumstances revealed by the record, i.e., a male self-help body: (a) part of the material is made close to the actual size, regardless of the upper part of the adult woman’s am, and its physical part is reproduced in a way similar to the actual part of the woman’s body by using a color container similar to that of the woman’s body; (b) in light of the size by part, its ratio, and color, etc., the overall form is likely to be close to a wise human body rather than the actual form; (c) separate coloring the shape of the woman’s sexual organ from the material of this case’s shape, but it cannot be said that the material of this case’s sexual organ was made in an explicit shape so as to excessively attract the external part of the woman’s sexual organ in light of the overall form such as its shape and color, and rather, it seems considerably insufficient to view that the material of this case’s sexual organ was harmful to the ordinary sense of sexual humiliation and its sexual humiliation, but it is difficult to view it as a serious sexual humiliation and expression beyond its normal sexual sense.

Nevertheless, the court below affirmed the judgment of the court of first instance that the instant goods constituted obscene goods that go against the concept of good sexual morality by stimulateing sexual humiliation and impairing ordinary people’s normal sense of sexual humiliation. In such a case, the court below erred by misapprehending the legal principles on obscene materials, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)