아동․청소년의 성보호에 관한 법률 제2조 4호의 아동․청소년이용음란물 정의에 대한 검토

Abstract

The child pornography is prohibited by the law in many countries and internationally. It means the pornography which depicts or reprensents the image of the child or adolescent acting actually or simulatedly some sexual acts or sexual intercourse. ‘The Protection of Child-Adolescent Against the Sex Crimes Act’ prohibits the acts of making, carrying, selling, exhibiting, representing or possessing the child pornographies. The Act also prohibits the making, carrying or possesseing etc. of the virtual child pornographies. The Act prescribes the virtual pornography abstactively in number 5 of the article 2 as “the person or the representation which is recognizable as child or adolescent, who is represented and acts the sexual behavior or some of the other sort of sexual action, and that image includes the visual and pictorial image, video material, computer game, … ’. But it is doubtful wheather the above mentioned provision is correctly prescribed the virtual child pornography, or wheather the provision breaches the definitive prescription standard of the Legality principles. The Constitutional Law Court decided the correctiveness of the clause in the constitutionality of the law case of the Act. The Court judged that the clause of the Act is definitive and clear, so the Act does not breached the constitutioality. But the minority opinion of the Court decided the case in opposite view. They judged the clause of the Act is abstract and ambiguous as the penal code, so they decided the clause breaches the definitive standard. The Act was reformed the clause of number 5 of the article 2 as more difinitive by inserting the word “is recognizable definitively”. But the difinitiveness of the clause is questioned as ever, because the words “representation” and “some of the other sort of sexual action” includes some abstractness and ambiguity. Also the appropriateness of the criminalization and punishing as crime against the children of the virtual child pornography is not obvious. The virtual material does not include any real child/juvenile image, and so any right or interest of real person of child/juvenile is infringed or attacked. It is just the moral sensitivity or ethical norms that the virtual material breaches or infringes. The effect of criminal justice system would be diminsished by punishing the virtual child pornography, and the citizen’s fundamental right for the art and expression could be brought in danger by the excessive regulation for the visual media. Because the abstractiveness and ambiguity of the Act is not removed by the reform of the clause. It is the more effective measure for the crimes against children and adolescent and the child pornography crime that criminal justice system fight to keep the children from behaviors such as corrupting the children. Such behaviors are for example, exposing, showing, spreading or selling the pornographic materials knowingly or on the purpose of infringing the right of children/adolescent in the way of easily being noticed to children or adolescent. These behaviors should be punished by more tough penalties like the countries such as Germany, Austria and France.