The meaning of, and the criteria for determining, “reliable representations that can be perceived as children or juveniles” under Article 2 subparag. 5 of the former Act on the Protection of Children and Juveniles against Sexual Abuse.

In light of the legislative purpose and amendment history of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012), characteristics of representations, etc., the term “reliable representations that can be perceived as children or juveniles” under Article 2 Subparag. 5 of the said Act means expressions that can be clearly perceived as juveniles from an objective point of view of the average person’s view. In individual cases, determination should be made carefully by comprehensively taking into account various circumstances, such as a description of the appearance and physical development of a person in which representations are expressed, voice, horses, clothes, setting of situation, background or reduced distance of images.

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

Supreme Court Decision 2013Do4503 Decided September 24, 2014 (Gong2014Ha, 2138) Supreme Court Decision 2013Do12607 Decided September 26, 2014

Defendant 1 and three others

Defendants

Law Firm aiming at Law, Attorneys Lee Dong-woo et al.

Incheon District Court Decision 2014No2680 Decided December 19, 2014

All appeals are dismissed.

The grounds of appeal are examined.

1. The allegation in the grounds of appeal as to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials) and assistance thereto

A. (1) 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 on the Protection of Juveniles against Sexual Abuse”) provides that “Child and youth refers to a person under the age of 19 years: Provided, That a person against whom January 1 of the year in which he/she reaches the age of 19 arrives is excluded; and Article 2 Subparag. 5 of the same Act provides that “child and youth pornography refers to a person or representations that may be perceived as a child, youth, or youth and constitutes a form of film, video, game software, or picture, image, etc. via a computer or other communications media by expressing any act falling under any of subparagraph 4 or any other sexual act.”

Unlike the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sep. 15, 2011), Article 2 Subparag. 5 of the same Act includes not only cases where children and juveniles appear but also cases where “persons or representations that can be perceived as children or juveniles” appeared as “children or juveniles,” but also in cases where children or juveniles appear. The reason is to protect children and juveniles from potential sexual crimes, taking into account the fact that viewing of various media products describing as sexual acts by children or juveniles may cause sexual crimes against children or juveniles regardless of whether they actually appear (see, e.g., Constitutional Court en banc Decision 2013Hun-Ga17, 24, 2013Hun-Ba85, Jun. 25, 2015).

After that, as the former Act on the Protection of Juveniles was amended by Act No. 11572 on December 18, 2012, Article 2 Subparag. 5 added the phrase “to make it clear” to be “persons or representations that can be clearly perceived as children or juveniles.”

(2) “Apparent material” as referred to in the provision on child and juvenile pornography is created by the creator differently from the actual person, and the creator does not have a unique age, but is merely the creator sets his/her age. Whether a expressive material indicates a child or juvenile is revealed through the characteristics set by the creator.

(3) In light of the legislative purpose and amendment history of the former Juvenile Protection Act, characteristics of representations, etc., “reliable representations that can be perceived as children or juveniles” under Article 2 subparag. 5 of the former Juvenile Protection Act refers to expressions that can be clearly perceived as juveniles from an objective point of view of society’s average person. In individual cases, the determination should be made carefully by comprehensively taking into account various circumstances, such as a description of the appearance and physical appearance of a person in which representations are expressed, voice or horse dose, uniform, situation setting, and background or reduced distance of video works.

B. For the following reasons, the lower court affirmed the first instance judgment convicting Defendant 4 of all aiding and abetting the violation of the former Act on the Protection of Juveniles from Sexual Abuse (production, distribution, etc. of obscene materials) against Defendant 1 and Defendant 3 Co., Ltd. (hereinafter “Defendant Co., Ltd.”) (hereinafter “Defendant Co., Ltd.”) among the charges modified in the instant case.

In full view of the various circumstances such as the appearance of the representations appearing in the cartoon videos posted by Defendant 4 on the “○○○○○○○○○○○○,” which is operated by Defendant Company through Defendant Company, appears to be below the age of 19, and at the creation of a theater, the cartoon videos of this case constitute a child or juvenile pornography as prescribed by the former Act on the Protection of Juveniles from Sexual Exploitation. Defendant 4 posted a notice knowing that the cartoon videos of this case constitute a child or juvenile pornography. Defendant 1 knew that the cartoon videos of this case were likely to be posted with child or juvenile pornography, including the cartoon videos of this case, while operating the Internet website site.

C. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, the lower court did not err in its judgment by misapprehending the legal doctrine regarding child and juvenile pornography or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of

2. As to the ground of appeal concerning aiding and abetting violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Distribution of obscenity)

Of the revised facts charged in the instant case, the lower court convicted Defendant 1, Defendant 2, and Defendant Company of aiding and abetting in violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Distribution of obscenity). Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the intent of aiding

3. The ground of appeal on the violation of the Juvenile Protection Act

Of the revised facts charged in the instant case, the lower court convicted Defendant 1 of the violation of the Juvenile Protection Act. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on media products harmful to juveniles, contrary to what

4. Conclusion

The Defendants’ final appeal is dismissed in entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)