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(영문) 서울고등법원 2019.03.28 2018노2821
아동ㆍ청소년의성보호에관한법률위반(음란물제작ㆍ배포등)등
Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

Sexual assault, 40 hours against the defendant.

Reasons

1. Summary of grounds for appeal;

A. The pictures produced by the Defendant in misunderstanding the legal principles as to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) and the Act on the Protection of Children and Juveniles against Sexual Abuse were produced by combining the face pictures of the victims to the photographs of third persons, not the victims, and the pictures of the children and juveniles “obscenity produced by using them” do not by itself constitute “child and juvenile pornography” as defined in the Act on the Protection of Children and Juveniles against Sexual Abuse.

obscenity produced by the defendant is not a photograph that can be perceived as a child or juvenile without any room for examination in appearance, so it can not be a child or juvenile pornography.

Nevertheless, the court below found the defendant guilty of the facts charged by deeming the obscenity produced by the defendant as a child or juvenile pornography. The court below erred in the misapprehension of legal principles.

B. The lower court’s sentencing is too unreasonable.

2. Judgment on the grounds for appeal by the defendant ex officio shall be examined ex officio.

In the first instance of the trial, the prosecutor found guilty by the court below as follows: ① The number of crimes in the third 5th of the court below's judgment as to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) due to the production of child and juvenile pornography is changed from "38 times" to "37 times"; and accordingly, the part of the number of crimes in the third 5th of the court below's judgment as to the attached list of crimes (1) shall be changed and deleted as shown in the attached list of crimes (1). The name of the crime in the second 200, the applicable provisions of Article 244 and Article 243 of the Criminal Act shall be changed and deleted

(a) 1) added as described in sub-paragraph (b), and 2) as the primary charge of the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) due to sale of child and juvenile pornography for profit-making purposes;

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