2013Do11538 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production of obscenity);

[Name of crime recognized: Promotion of Utilization of Information and Communications Network and Information]

Violation of the Protection, etc. Act (Distribution of obscenity)

A

Prosecutor

Incheon District Court Decision 2013No1086 Decided September 13, 2013

January 15, 2015

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 “child and youth as a person under 19 years of age: Provided, That this shall not apply to a person who meets the 1st day of January of the year in which he/she reaches the 19 years of age, and Article 2 Subparag. 5 of the same Act provides that “child and youth pornography” as “child and youth, or a person or representations that may be perceived as a child and youth” appeared and carries out an act falling under any of subparagraph 4 or other sexual acts, which defines as “in the form of film, video, game software, or image or image, etc. through computers or other communications media,” and Article 8(4) of the same Act provides that a person who distributes or openly exhibits or displays any child and youth pornography or a fine not exceeding 20 years of age.”

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 who can be perceived as children or juveniles" under Article 2 subparagraph 5 of the former ASEAN Act are somewhat ambiguous, and the scope of punishment is likely to be excessively wide, in order to clarify its meaning, it is clearly interpreted as "in the amendment of the former ASEAN Act by Act No. 11572 on December 18, 2012, it is not permitted to excessively interpret or analogically interpret the meaning of the penal law in the direction unfavorable to the defendant in the direction unfavorable to the defendant.

In order to be called, the main contents should be the expression of sexual intercourses, etc. with children and juveniles. In addition, considering various information given to the external appearance of the person appearing, physical development status, the source or production process of video works, the identity of the stolen person, etc., the primary contents should be clearly perceived as children and juveniles without any room for appearance when objectively observed from the perspective of the average social person, and the mere fact that the appearing person appears to be somewhat small, it should not be concluded that the person who can be perceived as children and juveniles appeared is "child and juvenile pornography."

In light of the above legal principles, the reasoning of the judgment below, and the records, the court below was just in finding a not guilty of the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials), which is the primary charge of the instant case, on the ground that it is difficult to see that the actors appearing in the instant videos are clearly perceived as children and juveniles, based on the circumstances as stated in its reasoning, and there was no error in the misapprehension of legal principles as to the concept of "child and juvenile pornography" in the former ASEAN Act, or in finding facts contrary to logical and empirical rules, contrary to what is alleged in the grounds of appeal.

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

Justices Park Poe-young

Justices Min Il-young

Justices Kim Jae-han

Justices Kwon Soon-il