Korean courts impose severer penalties for the accused who commit sex offenses against minors than those in the past. There is a special act which prescribes sex offenses against child or youth and states penalties for the offenses in Korea; ACT ON THE PROTECTION OF CHILDREN AND YOUTH AGAINST SEX OFFENSES (hereinafter referred to as the “Act”). As you might know, it is very important to clarify what each term in each article means when judging whether the accused is convicted or not. In this posting, I’d like to briefly introduce a noteworthy court precedent specifying what “production of child or youth pornography” prescribed in the Act means.
Article 11 of the Act states on production, distribution, etc. of child or youth pornography as follows;
(1) Any person who produces, imports, or exports child or youth pornography shall be punished by imprisonment with labor for an indefinite term or for a limited term of at least five years.
(2) Any person who sells, lends, distributes, or provides child or youth pornography for commercial purposes, or possesses or transports them for any of such purposes, or publicly exhibits or displays them shall be punished by imprisonment with labor for not more than ten years.
(3) Any person who distributes, provides, or publicly exhibits or displays child or youth pornography shall be punished by imprisonment with labor for not more than seven years or by a fine not exceeding 50 million won.
(4) Any person who procures a child or youth for a child or youth pornography producer, knowing that he/she is to be used for producing child or youth pornography, shall be punished by imprisonment with labor for at least three years.
(5) Any person who possesses child or youth pornogrphy knowing that it is child or youth pornogrphy shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding 20 million won.
(6) Any person who attempts to commit an offense prescribed in paragraph (1) shall be punished.
Supreme Court, as for the meaning of the “production of child or youth pornogrphy” prescribed in the first paragraph of the Article, states that the accused who have the child or youth produce the obscene materials shall be penalized even if the child or the youth agreed to do so or s/he shoot himself/herself or the main purpose of the production of the pornography is for the accused to possess (Case number: 2018Do9340, Decided on September 13, 2018). Some might wonder why the accused shall be penalized even in case the child or the youth voluntarily shoot the pornography. According to the court, the reason is that the purpose of the Act lies in protecting the child and youth from sexual abuse and keeping the adults from watching the child or youth pornogrphy and having distorted sexual value system to see children or youth as thier sexual objects. The court precedent flagged up the danger of sexual offence against child or youth. For further inquiries, please feel free to contact me at [email protected].
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