The meaning of ‘obscenity’ under Article 243 of the Criminal Code and the criteria for determining obscenity

The term "obscenity" as stipulated in Article 243 of the Criminal Code refers to an ordinary person's sexual humiliation by stimulating the ordinary person's sexual desire, causing sexual humiliation, and impairing the normal sense of sexual shame, and it refers to the degree and method of expression that is explicit and detailed about the sex of the drawing in question, the degree of mitigation of sexual stimulation caused by the composition of the drawing in question or artistic nature, and whether the drawing is recognized as encouraging the reader's sexual interest mainly when viewed the drawing as a whole from the point of view, shall be determined in light of the sound social norms of that time. Since the art and obscenity are concepts different from the point of view, the obscenity of the work in question is not naturally denied, but it can only be punished if the obscenity is mitigated in accordance with the degree and degree of relationship between the artistic value, theme and sexual expression of the work in question.

Article 243 of the Criminal Act

Supreme Court Decision 87Do2331 Decided December 22, 1987 (Gong1988, 386), Supreme Court Decision 91Do1550 Decided September 10, 1991 (Gong1991, 2562), Supreme Court Decision 94Do1758 Decided June 16, 1995 (Gong195Ha, 268), Supreme Court Decision 94Do2413 Decided June 16, 1995 (Gong195Ha, 2673), Supreme Court Decision 97Do937 Decided August 222, 1997 (Gong197Ha, 2968), Supreme Court Decision 208Do679 Decided 27, 200 (Gong207676, Oct. 27, 200)

Defendant

Defendant

Seoul District Court Decision 2001No11472 delivered on May 21, 2002

The appeal is dismissed.

The term "obscenity" under Article 243 of the Criminal Act refers to an ordinary person's sexual humiliation by stimulating the ordinary person's sexual desire, causing sexual humiliation, and impairing the normal sense of sexual humiliation, and it shall be determined in light of the sound social norms of that age, considering the degree and method of expression in terms of the sex of the drawing in question, the degree of mitigation of sexual stimulation caused by the composition of the drawing in question or artistic value, and whether it is recognized that the drawing is mainly a obsive interest of the readers when viewed the drawing as a whole, and in light of the sound sense of social norms of that age (see Supreme Court Decisions 94Do1758, Jun. 16, 1995; 97Do937, Aug. 22, 1997; 200; hereinafter referred to as the "obscenity") as a matter of course, the art value of the drawing in question differs from the art value of the art work in question, and thus, it shall be deemed that the work of obscenity is not subject to punishment under the Criminal Act.

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance that found the defendant guilty of the charges of this case on the ground that the first instance court's first instance court's legally examined and adopted evidence clearly stated that the female shots suffered school uniform as soon as adult male sexual intercourse was exposed to panty, and that the documents of this case also contain phrases that the female shots suffered school uniform also shots out of the panty, and stated the above shots as they advocate juvenile sexual traffic in the inside of the cover, and considering the circumstances as alleged by the defendant, all of them constitute obscene drawings and documents that violate ordinary people's sexual humiliation and good sexual morality. In light of the above legal principles and records, the court below's aforementioned measures are just, and there is no violation of law as otherwise alleged in the ground for appeal.

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

Justices Lee Jin-hun (Presiding Justice)