In a case where the defendant, by threatening a victim who is a child or youth, created the images or videos, etc. with his/her own act falling under any of the acts falling under subparagraph 4 of Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse or other sexual acts, and stored them in the server of the website operator so that he/she can be reproduced from his/her cell phone equipment, whether the act constitutes an act of producing child or juvenile pornography under Article 11(1) of the same Act in the form of indirect offense (affirmative)

Article 34(1) of the Criminal Act, Article 2 subparag. 4 and 5, and Article 11(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

Defendant

Defendant

Attorney Kim Jong-hoon

Daejeon High Court Decision 2017No269 decided October 27, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the allegation in the grounds of appeal that the production of “child or juvenile pornography” does not constitute “child or juvenile pornography”

Article 34(1) of the Criminal Act provides, “A person who causes the result of a criminal act by instigating or aiding and abetting another person who is not punished for such act or who is punishable as an offender through negligence shall be punished in accordance with the same manner as aiding and abetting.” Therefore, if a defendant, by threatening a victim who is a child or youth, creates images and videos, etc. of which he/she himself/herself engages in an act falling under any of subparagraph 4 of Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection Act”), or other sexual acts, and makes it possible for him/her to reproduce them from his/her cell phone by storing them in the server of an Internet site operator, such act shall be deemed as an act of producing child or youth pornography as prescribed in Article 11(1) of the Act on the Protection of Juveniles against Sexual Abuse in the form of an indirect crime.

Based on its stated reasoning, the lower court determined that the Defendant’s act of having the victim, who is a child or juvenile, photograph obscene videos and receiving the cell phone transmission from the cell phone constitutes an act of producing child or juvenile pornography.

In light of the aforementioned legal principles and records, the lower court did not err by misapprehending the legal doctrine on the production of child and juvenile pornography under Article 11(1) of the Juvenile Protection Act, contrary to what is alleged in the grounds of appeal.

2. As to the remaining grounds of appeal

Even upon examining the relevant legal principles and evidence, the lower court did not err by misapprehending the facts contrary to logical and empirical rules, or by misapprehending the legal doctrine on “child or juvenile pornography” under Article 2 subparag. 5 of the Juvenile Sex Protection Act, contrary to what is alleged in the grounds of appeal.

3. Conclusion

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

Justices Lee Ki-taik (Presiding Justice)