Requirements to constitute “child or juvenile pornography” under Article 2 subparag. 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse.

In light of the principle of no crime without the law and the principle of no crime without the law that excessively wide interpretation or analogical interpretation of the meaning of a written provision to the disadvantage of the defendant, and Articles 2 subparag. 4, 5, and 8(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sept. 15, 201); Articles 2 subparag. 4, 5, and 8(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11572, Dec. 18, 2012); and the language and text of Articles 2 subparag. 4, 5, and 8(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11572, Dec. 18, 2012); and the history of the above provisions, “child or juvenile pornography” as referred to in Article 2 subparag. 5 of the said Act should appear so that the child or juvenile’s act should be the same.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 2 subparag. 4 and 5, and 8(1) (see current Article 11(1)) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 11047, Sept. 15, 201); Articles 2 subparag. 4 and 5, and 8(1) (see current Article 11(1)) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 11572, Dec. 18, 2012); Articles 2 subparag. 4 and 5, and 8(1) (see current Article 11(1))

Defendant

Prosecutor

Law Firm Hong-dong, Attorney Kim Young-chul

Seoul High Court Decision 2012No3437 decided December 21, 2012

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The interpretation of a penal provision shall be strict, and the interpretation of a penal provision in the direction unfavorable to the defendant shall not be permitted as it is against the principle of no punishment without the law (see Supreme Court Decision 2009Do3053, Dec. 10, 2009, etc.).

Article 2 Subparag. 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sept. 15, 201) and Article 2 Subparag. 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012); and Article 2 Subparag. 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012) stipulate that “child and youth pornography” or “persons or representations that may be perceived as children, juveniles, or juveniles” appear to express any act falling under any of subparagraph 4 or other sexual acts, and defines those in the form of film, video, game software, or image, video, etc. using computers or other communications media as “child and youth pornography,” and Article 8(1) of the said Act provides that “child and youth pornography shall be punished by limited imprisonment for at least five years against a person who produces, imports or exports

Meanwhile, Article 2 Subparag. 4 of the above Acts provides that "act of purchasing child or youth's sex to a child or youth or allowing a child or youth to do any act falling under any of the items of the same subparagraph in return for providing or promising a child or youth to do so," and each item of the above Acts provides that "act of purchasing sex to a child or youth," "act of sexual intercourse using part of body, such as the mouth and mouth, or any similar sexual intercourse with any instrument," "act of having contact with and exposing all or part of body, which may cause a sense of sexual humiliation or aversion of ordinary people," and "self-defense act."

In light of the aforementioned legal principles and the language and text, statutory penalty, and the history of the above provisions, “child or juvenile pornography” as referred to in Article 2 subparag. 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse shall appear, and thus, the expression “child or juvenile” or “persons or representations that may be perceived as a child, juvenile, or juvenile” should be the same as engaging in any other sexual act or sexual act as referred to in the items of Article 2 subparag. 4.

In the same purport, the court below decided that the film or video produced by the defendant does not constitute “child or juvenile pornography” as prescribed by the above Acts, and it is just to find the defendant not guilty of the charge of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) among the charges of this case, and there is no error of law by misapprehending the legal principles on “child or juvenile pornography” as 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 Kim So-young (Presiding Justice)