[1] The meaning of "obscenity" under Article 48-2 of the former Framework Act on Telecommunications and the criteria for its determination

[2] Whether obscenity is naturally denied in the case of an artistic work of art (negative)

[3] The case holding that obscenity is recognized for part of his art works, photographs and videos posted by art teachers on their Internet homepage

[1] The phrase "obscenity" under Article 48-2 (1) of the former Framework Act on Telecommunications (Article 5 (1) of the Addenda to Act No. 6360 of Jan. 16, 2001) refers to the act contrary to the concept of sexual morality by stimulating ordinary people's sexual desire and impairing normal sexual humiliation by stimulating them. In determining whether the expression is obscene or not, the degree and method of the explicit and detailed description and writing about the sex of the given expression shall be the weight of the expression in the entire expression, the relation between the expression and the expression, the degree of relaxing of sexual stimulation by the composition or development of the expression, or by the art or thought, etc., the degree of relaxing the sexual stimulation by the expression in question, and whether the expression in question mainly shows the interest of the people who view it as a whole, shall be evaluated not by the objective and sound social norms of the producer, but by the objective and sound social norms of the society.

[2] The artistic value and obscenity are concepts different from sources of origin, and the obscenity of a work is not naturally denied on the basis of the existence of artistic value in a certain work of art. However, there is only a case where the obscenity is mitigated and it can no longer be subject to punishment.

[3] The case holding that a part of his art teacher's art works, photographs, and motion pictures posted on his Internet homepage is obscenity

[1] Article 48-2 of the former Framework Act on Telecommunications (repealed by Act No. 6360, Jan. 16, 2001; Article 65 (1) 2 of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, etc.) / [2] Article 48-2 of the former Framework Act on Telecommunications (Elimination by Act No. 6360, Jan. 16, 2001; see Article 65 (1) 2 of the current Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, etc.) / [3] Article 48-2 of the former Framework Act on Telecommunications (de by Act No. 6360, Jan. 16,

[1] [2] Supreme Court Decision 98Do679 delivered on October 27, 200 (Gong2000Ha, 2476) / [1] Supreme Court Decision 94Do2413 delivered on June 16, 1995 (Gong1995Ha, 2673), Supreme Court Decision 97Do937 delivered on August 22, 1997 (Gong1997Ha, 2968), Supreme Court Decision 2002Do2889 Delivered on August 23, 2002 (Gong2002Ha, 2273)

Defendant

Prosecutor

Law Firm Han-gu, Attorneys Park Sung-min et al.

Daejeon High Court Decision 2003No31 delivered on May 2, 2003

The part concerning the facts charged in the judgment below concerning paragraphs (1), (3), and (5) shall be reversed, and that part of the case shall be remanded to the Daejeon High Court. The prosecutor's remaining appeal shall be dismissed.

1. The term "obscenity" under Article 48-2 of the former Framework Act on Telecommunications (amended by Act No. 6360, Jan. 16, 201; Article 5 (1) 2 of the Addenda of the current Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.) refers to the expression contrary to the concept of sexual morality by stimulating ordinary people's sexual desire and impairing normal sexual humiliation. In determining whether the expression is obscene or not, the degree and method of the explicit and detailed description and writing about the sex of the given expression shall be the proportion of the expression in the entire expression, the relation between the expression and the expression, the degree of mitigation of sexual stimulation due to the composition or development of the expression, or artistic value, etc., and whether the expression is mainly viewed as a whole, it should be evaluated not as an average of 197 times, but as an average of 197, etc., 2097.

2. Determination as to the facts charged under paragraphs (2), (4), and (6)

이 사건 공소사실 제2항, 제4항, 제6항 기재 그림과 동영상은 미술교사인 피고인이 교사생활 틈틈이 제작하였다가 자신의 홈페이지를 개설하면서 거기에 게시한 자신의 미술작품과 사진, 동영상의 일부인데, (1) 그 중 '무제'라는 작품(공소사실 제2항)은 진한 남색의 플라스틱제 환자용 변기 바닥의 한 가운데에 남자의 성기가 자리잡은 모습(발기되지 않은 모습)을 그린 것으로서 그림 전체에서 성기가 차지하는 비중이 매우 작고 그 성기가 두드러져 보이지도 아니하여 언뜻 보기에는 남자의 성기로 보이지 아니할 정도인 점, 그림을 전체적으로 보면 성기가 환자용 변기에 압도되어 있어 성기보다는 환자용 변기의 이미지를 먼저 갖게 될 가능성이 높아 보통 사람으로 하여금 성적 흥분이나 수치심을 불러일으킨다고 보기는 어려운 점, (2) 다음, '남자라면'이라는 작품(공소사실 제4항)은, 소년으로 보이는 근육질의 남자 주인공이 자신의 힘을 자랑하는 듯이 서있고, 그 소년의 성기가 바지 바깥쪽으로 발기된 채 노출되어 다소 크게 그려져 있는 것인데, 이 그림은 자체가 만화로서 그 주인공의 근육질과 성기가 매우 과장되게 묘사되어 있어 현실감이 떨어지고 사실적이라기보다는 그 설명과 함께 공상적이라는 느낌을 쉽게 주는 점, (3) 그리고 '포르노나 볼까'라는 동영상(공소사실 제6항)은 여자의 음부 주변의 일부분, 둔부, 성적 감정에 도취된 듯한 얼굴 일부, 신체의 일부분 등을 찍은 사진 일곱 장과 하얀 여백을 매우 빨리 움직이게 한 것으로서 이를 자세히 보려고 하면 할수록 아무런 내용도 파악할 수 없게 되어 있고, 영상의 하단 부분에 '헉헉'이라는 문자가 빠른 속도로 지나가도록 함으로써 포르노가 아닌가 하는 상상을 하게 하지만 정작 이 동영상을 자세히 보면 포르노를 보려는 사람이 통상 기대하는 장면은 전혀 등장하지 아니하는 점, (4) 공소사실 제2항, 제4항, 제6항 기재 그림이나 동영상의 전반적인 인상이 선정적이라고 보기는 어려운 점, 나아가 위 그림이나 동영상과 피고인의 홈페이지에 게시된 다른 미술작품, 피고인의 홈페이지의 전체적인 구성, 피고인의 홈페이지의 독특한 전개 방식 등을 종합하여 보면, 공소사실 제2항, 제4항, 제6항 기재의 그림 또는 동영상이 전체적으로 보았을 때 일반 보통인의 성욕을 자극하여 성적 흥분을 유발하고 정상적인 성적 수치심을 해하여 성적 도의 관념에 반하는 것이라고 보기 어렵다.

In the same purport, the court below is just in holding that the pictures and videos described in paragraphs (2), (4), and (6) of the facts charged cannot be viewed as obscene, and there is no error of law by misapprehending the legal principles as to obscenity.

3. Determination as to the facts charged under paragraphs (1), (3), and (5)

First of all, it is difficult for the defendant to see that the material of this case is a health stand, this material is a combination of the material of this case, which is composed of a woman's bridge, and its diversity, and its description is very close and dynamic, and its obscenity is very true, as it is considerably limited on the entire screen, except the phrase "the fluority of the picture". It is hard for the defendant to see that some of the material of this case is 9 works of this case's obscenity because it is hard to see that the material of this case's diversity, etc. It is hard to see that the material of this case's diversity, etc. is an open or diversified material of this case's diversity, and it is hard to see that the material of this case's diversity, etc. is an open or diversical material of this case's diversity.However, it is hard to see the defendant's image or hirthical work.

Next, it is difficult to see that these pictures were manufactured or added to the defendant's body without being able to see that it is hard to see that these pictures were manufactured or added to the defendant's body without being able to see that the defendant's body was able to see the above 7th anniversary of 'the above fact-finding 3', and that these pictures were able to see that it is hard to see that the defendant's body and the defendant's body were frightened from her body to her body, and that it is hard to see that the defendant's body was frightened or her body, and that it is hard to see that the defendant's body was frightened from her body and that the defendant's body was frightened from her body, and that the defendant's body was frightened from her body, and that it was grightd from her body body and that it was an expression or grighte of his body.

Furthermore, the material’s health stand, this material is a highly detailed description as to the material’s sex and minute release of the man being generated, and the material’s sex and minute description as to the material’s sex. It is hard to view that the material’s sexual image as a man with a wide range of pictures is controlled by the entire image, and as it is difficult to view the material’s sexual image as a man with a different character or sense of shame, it is hard to see that the material’s sexual image as well as the material’s character is highly detailed, and that it is difficult to see that the Defendant’s sexual image as a man with a view to spreading the material’s sexual character or sense of shame, and that it is difficult to see that the material’s sexual character is a man with a view to its disclosure, and that it is difficult to see the Defendant’s sexual character as an open art category as one of the following. However, it is difficult to see that the Defendant’s sexual character is an open art category’s expression and its content is added to the Defendant’s obscenity.

On the other hand, the artistic value and obscenity are concepts different from sources of origin, and there is artistic value in a certain art work, and they do not automatically deny the obscenity of the work. However, according to the degree of the relationship between the artistic value, theme, and sexual expression of the work, the obscenity is mitigated, and the work cannot be subject to punishment (see Supreme Court Decision 98Do679 delivered on October 27, 2000). Thus, the obscenity of the work cannot be deemed to be naturally denied merely on the grounds that the defendant's above works have artistic value.

Nevertheless, the court below found the defendant not guilty on the ground that it is difficult to recognize that the above photographs and the two pictures have mainly contributed to raising friendly interest to the extent of deviating from the permissible range under the social norms, or that it is hard to recognize that the ordinary person’s normal sense of shames or stimulates sexual humiliation, and it harms ordinary people’s normal sense of shame and goes against the good sexual morality, is erroneous in the misapprehension of legal principles as to obscenity, which affected the conclusion of the judgment. The prosecutor’s ground of appeal pointing this out is with merit within the scope of this scope.

4. Conclusion

Therefore, the part of the judgment of the court below regarding the indictments Nos. 1, 3, and 5 cannot be maintained any more, and it is reversed, and that part of the case is remanded to the court below. Since the remainder of the judgment below is legitimate, the prosecutor's appeal is dismissed and it is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)