(영문) 대법원 2020.1.16.선고 2019도14056 판결

1. The term "obscenity act" in the crime of obscenity under Article 245 of the Criminal Act refers to an act contrary to the concept of sexual morality by inducing sexual interest and impairing normal sexual humiliation by stimulating ordinary people's sexual desire (see Supreme Court Decision 2005Do1264, Jan. 13, 2006, etc.). The act does not necessarily require the expression of sexual behavior or the expression of sexual intent (see Supreme Court Decision 2005Do1264, Jan. 13, 2006, etc.).

In addition, Article 3 (1) 33 of the Punishment of Minor Offenses Act provides that "a person who embarrasses or disturbs other persons by exposing a major part of the body, such as a sex instrument, her butt, etc. open to the public" shall be punished. In light of the specific circumstances such as the date and time and place of exposure, exposure method, degree of exposure, and motive and circumstance of exposure where an act of exposing a major part of the body, such as sexual instrument, her butt trade, etc., was committed, if it is merely a mere degree of embarrasing another person’s humiliation or aversion, it is merely an obscene act under Article 3 (1) 33 of the Punishment of Minor Offenses Act, but not only such degree may be deemed to fall under "obscenity act under Article 245 of the Criminal Act, if it causes sexual humiliation and causes a normal sense of sexual shame by stimulating an ordinary person’s sexual desire (see, e.g., Supreme Court Decision 201Do5364, Mar. 26, 2004).

On the other hand, the concept of "obscenity" itself is relative and flexible that changes according to changes in society and the times, and is also abstract that has close relationship with the morals, ethics, religion, etc. of society in that era. Thus, in determining obscenity specifically, it is not a subjective intent of an actor, but an objective and normative evaluation according to sound social norms by observing the overall contents from the perspective of the average person, rather than a subjective intent of the actor (see, e.g., Supreme Court Decisions 94Do2266, Feb. 10, 1995; 201Do16580, Oct. 25, 2012).

2. The evidence duly admitted by the court below reveals the following facts.

A. On October 9, 2017: (a) around 20:26, the Defendant: (a) was exposed to the participation in the war, such as: (b) her panty and panty, (c) having been exposed to her gender and her tum, and (d) having been walking back to one direction at the end of the participation in the war; and (b) having taken the front of the participation in the war or her surrounding part in the war.

B. There are various attitudes, such as the body of the people in the war, seated with being known or exposed, attitude, etc., and the body of the people in the war, as well as the body of the people, or with those of those who live in a fluoral body or with a fluoral body of a fluor. From the fluoral surface, it is expressed that the length of the fluoring and men are many inside and outside of 20 persons, and that the fluoral, fluor, tur, etc. are considerably humd and humd.

C. At the time of the instant case, even though at night, the said War Veterans did not go ahead due to the surrounding lighting, and many people passed.

D. During the process of marining, the Nonindicted Party: (a) observed the appearance of the Defendant’s sexual intercourse and her mar as above; (b) confirmed it; and (c) viewed that another female four and her children passed, the Nonindicted Party reported the Defendant to the police.

E. According to the report of the Nonindicted Party, the Defendant continued to be exposed to the police officer’s sexual intercourse and her tamp around the time when the police officer arrived at the site.

3. Examining the foregoing facts in light of the legal principles as seen earlier, in light of the following, the Defendant’s act of exposing sexual and her malt as seen in the instant facts charged by comprehensively taking into account the specific circumstances, such as the time and place of the act, exposure part, exposure method, degree, time, exposure circumstance, etc., the act constitutes a openly obscene act even if the act does not describe the sexual act or display sexual intent. Specific reasons are as follows.

A. Since many people, including women and children, are passing through the Defendant’s wife at the time of the instant case and did not go around, the passageers could easily find out the Defendant’s act, clothes, images, etc.. The Defendant could sufficiently recognize that many people pass through the Defendant’s surroundings.

B. Nevertheless, the Defendant, at the time, her panty and panty was exposed to her mar and her mar, and did not make efforts to her mar and mar before being exposed, and continued the exposure for a considerable period of time.

C. There were many figures who expressed al body, etc. in the wartime reserve in which the defendant viewed it as being exposed or read around it.

D. At that time, a number of visitors, including four other women passing through the same place, could have sufficiently seen that the Defendant, while revealing her gender and her mar, view the participation in the war in which the her mar is a part of his mar, or the surrounding area of his mar, etc. The Defendant’s act of continuously exposing her gender and mar on the background of the above mar mar, may sufficiently be selected, and may cause a sense of sexual humiliation or shame of the general public.

E. Ultimately, if the Defendant’s above act is evaluated objectively and normatively in accordance with sound social norms by observing the overall content from the standpoint of the average person, it can be deemed as an act contrary to the concept of sexual morality by stimulating the sexual desire of the ordinary person, rather than merely harming another person, by stimulating the sexual desire of the ordinary person.

4. Nevertheless, the lower court acquitted the Defendant of the instant facts charged, on the ground that the “obscenity act” in the crime of obscenity means only sexual act, or the Defendant’s act did not lead to sexual humiliation by stimulating the public’s sexual desire.

In so doing, the lower court erred by misapprehending the legal doctrine on “obscenity” in the crime of obscenity, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

5. 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.