The meaning and scope of “for-profit purposes” as stipulated in Article 11(2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse / Whether an operator of a private Internet gambling site is recognized as an act of opening a gambling space for profit-making purposes (affirmative) and whether an act of openly displaying children and juveniles pornography for profit-making purposes is recognized as an act of openly displaying children and juveniles pornography in a social network service app by opening an open hosting room and posting children and juveniles pornography videos on the 1:1 conversation.

Article 11(2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 17338, Jun. 2, 2020) provides that a person who openly displays child or juvenile pornography for profit-making purposes shall be punished by imprisonment for not more than ten years.

"Profit-making purpose" under the above provision refers to the intent to pursue the intention or profit to obtain property benefits in the course of a specific violation prescribed by the above Act, and this refers to the purpose of obtaining economic benefits, and it refers to the purpose of obtaining economic benefits, and the purpose of profit-making is recognized even in the case of profits indirectly obtained through the act of violation, not the direct consideration of the act of violation, such as the distribution of child and juvenile pornography.

Therefore, if a person who operates a private Internet gambling site opens an open hosting room on the app of social network service and posts children and youth pornography videos, up to 1:1 dialogues, and joins many unspecified persons as an open hosting member through the above open hosting room, and if he/she publicizeds the gambling site he/she operates at the open hosting room by advertising the gambling site he/she entered by telephone and approving the subscription of the above gambling site by posting the phone using the name, telephone number, etc., the act of opening the gambling space for profit as well as the act of openly displaying children and youth pornography for profit-making purposes is recognized.

Article 11(2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 17338, Jun. 2, 2020); Article 247 of the Criminal Act

Supreme Court Decision 97Do2368 Decided December 12, 1997 (Gong1998Sang, 357), Supreme Court Decision 2003Do803 Decided March 26, 2004, Supreme Court Decision 2008Do3970 Decided October 23, 2008 (Gong2008Ha, 1639), Supreme Court Decision 2017Do7134 Decided August 18, 2017 (Gong2017Ha, 1827)

Defendant

Defendant

Attorney Choi Dong-dong et al.

Seoul Central District Court Decision 2020No60 Decided June 18, 2020

The appeal is dismissed.

The grounds of appeal are examined.

1. Determination on the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials)

A. Article 11(2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 17338, Jun. 2, 2020) provides that a person who openly displays a child or juvenile pornography for profit-making purposes shall be punished by imprisonment with prison labor for not more than ten years.

"Profit-making purpose" under the above provision refers to an intention to pursue an intention or profit to obtain property benefits in a specific violation prescribed by the above Act (see, e.g., Supreme Court Decision 2003Do8003, Mar. 26, 2004). This refers to the purpose of widely obtaining economic benefits, which is not the direct consideration for an offense such as distribution of child and juvenile pornography, but the purpose of profit-making is recognized (see, e.g., Supreme Court Decisions 97Do2368, Dec. 12, 1997; 2008Do3970, Oct. 23, 2008; 2017Do7134, Aug. 18, 2017).

Therefore, if a person operating a private gambling site opens an open hosting room, up to post children and juveniles pornography videos, up to 00 ○○○, up to join the open hosting room, and up to 1:1 conversation, many unspecified persons join the open hosting room by advertising the gambling site operated by him/her at the open hosting room, leading his/her members to enter the above gambling site by advertising the gambling site by using the name, telephone number, etc., and approving the subscription of the gambling site, the act of opening the gambling space for profit-making purposes as well as the act of openly displaying children and juveniles pornography for profit-making purposes.

B. For the reasons indicated in its holding, the lower court convicted the Defendant of the facts charged that the Defendant openly displayed child or juvenile pornography for profit by opening an open hosting room at a total of ten times in collusion with employees, including the co-defendant 1 of the lower court and posting them for an illegal gambling site. Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on “for profit-making” under Article 11(2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse, etc., by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on “for profit-making” under Article 11(2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 1738

2. Judgment on the additional collection

For reasons indicated in its holding, the lower court additionally collected KRW 1,163,469,00 from the Defendant. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court 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 doctrine on

3. As to 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 more than ten years has been imposed, an appeal on the grounds of unfair sentencing shall be allowed. In this case where a more minor sentence has been imposed on the defendant, the argument that the punishment is too unreasonable shall not be a legitimate ground

4. Conclusion

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

Justices Noh Tae-tae (Presiding Justice)