‘아동·청소년이용음란물’의 개념 및 판단기준

A Study on the Term and the Standard of Judgment of “Child or Juvenile Pornography”

Recently, the Supreme Court suggested the standard of judgment of “child or juvenile pornography” where persons or representations that can be perceived as children or juveniles appear(2013Do4503). According to the standard, a depiction’s main content, appearances, states of physical development and identities of the characters, etc. must be considered in judging whether it is “child or juvenile pornography” or not, and it is not to be easily concluded that the depiction is “child or juvenile pornography”, even if the characters look somewhat younger. But I guess that this standard will not have a great effect on the judgment, because there are the conceptual element of “can be” and the principle of “in dubio pro reo”. From the point of view of the principle of clarity, the use of the conceptual element like “can be” is to be restrained in articles of criminal law, if possible. Therefore, it is proper that the term “child or juvenile pornography” should be reorganized as a depiction where real persons appear. The gap of punishment resulting from here will not happen. Criminal Act and Information and Communications Network Act will bridge the gap.