The reason for punishing the production of obscene materials by children and juveniles, and whether it constitutes “production of obscene materials by children and juveniles” under Article 11(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse even if the production of obscene materials for the primary purpose is made with the consent of children and juveniles or with the personal possession and storage for the primary purpose (affirmative)

The legislative purpose of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection Act”) is to protect children and juveniles from sexual abuse or exploitation, and to enable them to become responsible for children and juveniles and healthy members of society by severely punishing persons who have committed sexual acts against children and juveniles. Child and juvenile pornography is not only to protect children and juveniles who are victims, but also to promote distorted awareness of sex and abnormal values for those who have viewed them as sexual objects. Accordingly, it is necessary to protect children and juveniles from potential sexual crimes arising from fundamentally blocking “production” of obscene materials using children and juveniles to regard them as sexual objects. In particular, if obscene materials are produced through the development of information communication media, such as the Internet, there is a possibility that they may be provided indiscreet and differentiated distribution regardless of their intent after production. Accordingly, even if there is a reason to punish the production and use of obscene materials by children and juveniles, it shall be deemed that they constitute “production and use of obscene materials” of the Act on the Protection of Children and Juveniles against Sexual Abuse.

If the Defendant planning to make a child or juvenile pornography and, even if the Defendant did not directly do so, intended to have a child or juvenile pornography in the presence of a child or juvenile, and intended to have another person do so or given a specific instruction in the course of making a photographing, barring special circumstances, it constitutes “production” of the child or juvenile pornography. The production is completed and stored in a renewable form, and it does not necessarily lead to the number of pages, and it does not necessarily lead to the situation in which the Defendant may reproduce the produced child or juvenile pornography or reproduce it by the Defendant’s device. This legal doctrine applies where the Defendant had a child or juvenile photograph himself/herself.

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

Supreme Court Decision 2014Do11501, 2014 Jeondo197 Decided February 12, 2015 (Gong2015Sang, 505)

Defendant

Defendant

Attorneys Choi Ho-ho (Korean), et al.

Busan High Court Decision 2017No756 decided May 24, 2018

The appeal is dismissed.

The grounds of appeal are examined.

1. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (production, distribution, etc. of obscene materials);

A. The Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection Act”) provides for punishing the production, etc. of child and juvenile pornography as follows. In other words, a person who produces, imports, or exports child and juvenile pornography shall be punished by imprisonment for life or for a limited term of not less than five years (Article 11(1)).

Child or juvenile pornography refers to an act falling under any of subparagraph 4 by appearing of persons or representations that can be clearly perceived as a child or juvenile, or an act of expression of other sexual acts, which is in the form of film, video, game software, or images or videos, etc. through computers or other communications media (Article 2 Subparag. 5 of the Juvenile Sex Protection Act). Article 2 Subparag. 4 thereof provides that “A. sexual intercourse, (b) similar sexual intercourse using parts of body, such as mouth and mouth, or implements, and (c) similar sexual intercourse using parts of body, such as mouth and mouth, or implements, which may cause sexual humiliation or aversion of the general public.” The Juvenile Sex Protection Act provides for the meaning of “child or juvenile pornography” and does not ask whether such act was taken against the intent or intent of a child or juvenile as a requirement for the establishment of an offense, such as the production of child or juvenile pornography.

The legislative purpose of the Act on the Protection of Juveniles from Sexual Abuse is to protect children and juveniles from sexual abuse or exploitation, and to enable them to grow up to healthy members of society by severely punishing persons who have committed sexual acts against children and juveniles. Child and youth pornography not only leads to the mental suffering that is difficult to cure them directly, but also promotes distorted perceptions and abnormal values toward sex to those who view them. Therefore, it is necessary to protect children and juveniles from potential sexual crimes arising from fundamentally blocking “production” using children and juveniles to see them as sexual objects. In particular, if obscene materials are produced through the development of information and communications media, such as Internet, etc., there is a possibility of providing them with obscene and differentiated distribution at any time regardless of their producers’ intention. In this regard, there is a reason to punish production of obscene materials using children and juveniles. Accordingly, even if consent is obtained from them, production and use of obscene materials by children and juveniles, such as production and use of obscene materials shall be deemed to fall under “101(14)10(1)10(14)1(2)10(15)1)(see Supreme Court Decision 2101014(14)101).

If the Defendant planning to make a child or juvenile pornography and, even if the Defendant did not directly do so, intended to have a child or juvenile pornography in the presence of a child or juvenile, and intended to have another person do so or given a specific instruction in the course of making a photographing, barring special circumstances, it constitutes “production” of the child or juvenile pornography. The production is completed and stored in a renewable form, and it does not necessarily lead to the number of pages, and it does not necessarily lead to the situation in which the Defendant may reproduce the produced child or juvenile pornography or reproduce it by the Defendant’s device. This legal doctrine applies where the Defendant had a child or juvenile photograph himself/herself.

B. According to the reasoning of the judgment below, the defendant alleged that he would make the victim pay money using the Kakakakao Ma, and ordered the victim to photograph the victim's obscene act, such as self-defense, which was attached to the victim's smartphone, and accordingly, the victim taken the victim's obscene act in a camera attached to his own smartphone. The court below determined that the defendant completed the production of child and juvenile pornography in the manner that the video files were entered into the victim's smartphone storage device. The defendant asserted that the video files taken by the victim only were sent to the victim, but did not store or spread them, and that they do not constitute the production of child and juvenile pornography, but the court below rejected this.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court’s determination is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on the production of child or juvenile pornography under Article 11(1) of the Juvenile Sex Protection Act or the principle of clarity of the principle of no punishment

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media);

The lower court upheld the first instance judgment convicting of this part of the facts charged. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against the rules of evidence or logical and empirical rules.

3. Conclusion

The Defendant’s appeal is dismissed 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)