2013Do12345 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

A person shall be appointed.

Defendant

Seoul Northern District Court Decision 2013No861 Decided September 25, 2013

October 6, 2014

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

The grounds of appeal are examined.

1. The judgment of the court below

The court below, based on the evidence adopted by the court of first instance, expressed the contents of sexual intercourse or other sexual acts by "persons or representations that can be clearly perceived as children or juveniles", such as the appearance of female students who suffered school uniforms and explaining the contents of sexual intercourse by using the expressions that are female students or female students, etc., and thus expressing sexual intercourse or other sexual acts in accordance with the former Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter "Act on the Protection of Sexual Abuse").

18. The first instance judgment convicting the Defendant of the instant facts charged was affirmed, on the ground that it constitutes “child or juvenile pornography” as prescribed by the former ASEAN Act (wholly amended by Act No. 11572, Dec. 18, 2012) or the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 201).

2. The judgment of this Court

The above judgment of the court below is hard to accept for the following reasons.

A. Article 2 Subparag. 1 of the former ASEAN defines “children and juveniles as children and juveniles under the age of 19”: Provided, That a person who distributes, openly displays, or shows child and juvenile pornography on January 1 of the year in which he/she reaches the age of 19 shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 20 million won in the form of a film, video, game product, or picture or image, etc. by appearing in a child, juvenile, or a person who may be perceived as a child or youth under subparagraph 4, or other sexual act.”

However, to protect the freedom and rights of individuals from arbitrary exercise of national penal authority

In light of the legislative purpose, amendment history, structure of law, etc., “persons or representations that can be perceived as children or juveniles” as defined in Article 2 subparag. 5 of the former ASEAN Act, and the scope of punishment is likely to be excessively widened without meaning as arbitrary determination by an investigative agency for children or juveniles. As such, in addition to the phrase, “a person or representations that can be clearly perceived as children or juveniles” as defined in Article 11572 of the former ASEAN Act in order to clarify its meaning, it can be objectively seen that the person appears not only to appear in the appearance of children or juveniles but also to be objectively perceived and seen as the appearance of children or juveniles in light of social norms, such as “the person or representations that can be clearly perceived as children or juveniles,” but also the appearance of children or juveniles as defined in Article 2 subparag. 5 of the former ASEAN Act in light of the legislative purpose, amendment, structure, etc. of the Act.

B. Examining the aforementioned legal principles and the evidence adopted by the first instance court, the video of this case, although female students who suffered school uniforms do sexual intercourse with male students, there is no background information about the source of each video of this case, the process of production, and the identity of the appearing person, etc., and when considering the external appearance or physical appearance of the above video, it is difficult to conclude that each video of this case is a child or juvenile pornography where a person who can clearly be perceived as a child or juvenile appeared.

Nevertheless, the lower court, on the grounds stated in its reasoning, deemed that each of the instant videos constituted child and juvenile pornography, and thus, determined by misapprehending the legal doctrine on “child and juvenile pornography” under Article 2 subparag. 5 of the former ASEAN.

3. Conclusion

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 Shin

Justices Min Il-young

Justices Park Young-young

Justices Kim Jong-il