형법상 음란행위의 ‘음란성’과 그 판단기준에 대한 비판적 고찰 - 대법원 2009. 2. 26. 선고 2006도3119 판결을 중심으로 -

Abstract

It is very sensitive and the center of attention what is the criteria and concept of obscenity in our society. However, it is not easy to discuss on this subject even now. So it leave a portion aside for a judge’s broth upon the standards of judgment and fundamental notions. of “Obscenity”. The crimes of which have the benefit and protection of the law such as a sound sexual morals or socio-general manner in Korea criminal law are divided into two and there are the crimes of pornography and public lewdness. But, a commonly accepted theory and Korean Supreme Court regard “a sexual expression stimulating a sexual shame and doing harm to a virtuous public morality” as obscene material and behavior. But, because there is vagueness in the concept and criteria of obscenity, it is very ambiguous problem to distinguish obscene with not obscene. Furthermore Article 243(Distribution, etc. of Obscene Pictures), Article 244(Manufacture, etc. of Obscene Pictures) and Article 245(Public Indecency) have same term. For all that it is in continual trouble, The matter still remains unsolved. Such a rigid and coarse criterion by Korean Supreme Court has enlarged the scope of obscenity. At such a time, this case which were denied to obscene behavior in “Act on the Regulation of Amusement Businesses affecting Public Morals” is invaluable. This paper will analyze the legal controls on “Obscenity” and look into the related matters. The second, I examine the Supreme Court’s decision, reveal the problems in its reasoning and give some suggestions focusing on the vagueness of the obscenity criterion, the necessity applying a definite standards to obscenity in obscene behavior. At last, this study will propose a systematic reform measure. For that, several foreign legislation serve as an example.