성적 표현의 형법적 통제에 대한 비판적 고찰

A Critical Study on the Criminal Regulation of Sexual Expression

&nbsp;&nbsp;Regarding the criteria of obscenity, We must understand one&quot;s value or morals about sex not with formal view point but substantial view point.<BR>&nbsp;&nbsp;In general, the concept of obscenity is defined as follows; (a) in patently manner, offensive and stimulate sexual behaviour, (b) not with artistic, educational, scientific, medical nature, only for sexual and animal appetites, (c)aggression to sound one&quot;s value of socio-general and one&quot;s sense of sexual shame. And the criteria of obscenity is defined on a sound judgement of general people and objective manners.<BR>&nbsp;&nbsp;But this concept of obscenity, especially "the sense of sexual shame", is very ambiguous to discriminate between obscene and not obscene.<BR>&nbsp;&nbsp;To judge whether it is obscene or not, the desirable guidelines must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific vale.<BR>&nbsp;&nbsp;In addition, regarding the control means of sexual expressions, the criminal regulation in direct may be a dractic step. Considering the limitations of moral and law or the freedom of expression, it is reasonable to discriminate between sexual expression materials and obscene materials. And the criminal regulation must apply only to obscenity and obscene materials. Because the criminal regulation should be the minimum.<BR>&nbsp;&nbsp;In the end, this subdivision and concreteness on the established concept of obscenity would contribute to increase efficiency of the criminal regulation and to prevent an infringement on the freedom of expression as the basic rights.