Standard for determining whether a person who can be recognized as a child or juvenile falls under “child or juvenile pornography” under Article 2 subparag. 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse.

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); Article 2 subparag. 1, 4, and 5, and Article 8(4) (see current Article 11(3)); Article 2 subparag. 5 of the Act on the Protection of Children and Juveniles against Sexual Abuse

Supreme Court Decision 2013Do4503 Decided September 24, 2014 (Gong2014Ha, 2138)

Defendant

Prosecutor

Incheon District Court Decision 2013No3460 decided April 25, 2014

The appeal is dismissed.

The grounds of appeal are examined.

Article 2 Subparag. 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”) defines “children and youth pornography” as “those under the age of 19 years: Provided, That those who have distributed children and youth pornography or publicly exhibited or screened them under Article 8(4) of the same Act by means of film, video, game software, or other communications media, or by means of a computer or other communications media, shall be excluded; however, Article 2 Subparag. 5 of the same Act defines “children and youth pornography” as “the appearing of children and youth, or persons or representations who may be perceived as children and youth, and thereby commit any act falling under any of subparagraph 4 or committed any other sexual act, and thereby defined as “a person who has distributed children and youth pornography or openly displayed or screened them shall be punished by imprisonment with labor for not more than 3,000 won or by a fine not exceeding 20 million won.”

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, which can be objectively perceived as the appearance of children or juveniles, as well as the appearance of children or juveniles.

Of the facts charged in the instant case, the lower court reversed the judgment that acquitted the Defendant of the facts charged to the purport that: (a) the title of each of the instant videos was publicly displayed or screened by allowing unspecified customers to access the “DNG obscene material server” managed by the Nonindicted Party, etc.; and (b) each of the instant videos, which is a child or juvenile pornography, such as “nuri female students,” etc., by allowing them to access the “DNG obscene material server” managed by the Nonindicted Party, etc., the lower court acquitted the Defendant of the facts charged, to the effect that: (a) the title of each of the instant videos, which is a child or juvenile pornography, was raised as children or juveniles; and (b) the character of each of the instant videos, such as the clothes worn by ordinary children and juveniles, such as the uniforms, etc. on some pages, was raised as children or juveniles; and (c) the photograph of less than ten copies of each of the instant videos, which is not sufficient to prove that the person appearing in each of the instant videos, etc. is obviously perceived as children, or juveniles; (d)

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the said judgment is justifiable in light of the aforementioned legal doctrine, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding “child or juvenile pornography” under Article 2 subparag. 5 of the former ASEAN Act, or by exceeding the bounds of the principle of free evaluation of evidence.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)