공연음란죄에 관한 비판적 고찰

Abstract

Recently Supreme Court has ruled that several acts should be punished by public lewdness such as nude performance for publicity for yoghurt, nude demonstration on the highway. But these acts are under severe dispute over the lewdness. Some say that these acts are not to be punishable because these acts can be viewed as exposure of a body, but not as lewd acts. Supreme Court has uphold that lewdness means which infringe sexual sense of the public from the 1960s. So reprinting of the old master printing of Goya on the match boxes was punished for the public lewdness in criminal law. But the concept of lewdness can be changed over the times. Also the next problems should be under scrutiny such as the act at issue can produce what kind of harm to the society, and the exact content of the harm. Korean society has been stick to strict concept of the lewdness because the attitude of koreans toward sexuality was too much influenced from the Confucianism. If Supreme Court keeps on holding this rules, it can be seen as violation freedom of arts and freedom of expression in free society. Public lewdness and exposure of a person should be divided and the acts above could be applicable under exposure of a person not public lewdness. So only the acts should be punishable under public lewdness such as sexual intercourse in the public places, masturbation or onanism which purpose to satisfy one's carnal appetite, bestiality, sexual abuse to children which are against the dignity of all mankind. The clause of public lewdness in Korean Criminal Law is too vague and unpredictable compared to that of the United States and Germany. It is advisable to amend the above clause more concrete and predictably.