아동음란물 규제의 적법성 고찰

Abstract

According to the existing act on the protection of children and juvenile, child pornography refers to the person or work depicting sexually explicit activities involving a child. Therefore even though a real adult and child as well as an imaginary child such as computer graphics or animation appear in the porn movie, they are regarded as child pornography which can be punished by the act on the protection of children and juvenile. Because there is no clear regulation for pornography, the regulator applies different regulations to a lawbreaker which makes general people to avoid approaching legal pornography. Although the purpose of legislation of “act on the protection of children and juvenile” is to protect children from sexploitation, it does not work well because it cracks down on the movie including an imaginary child such as computer graphics or animation; for this reason, the act on the protection of children and juvenile is deemed as defective regulation. Applying the law to specific cases is very hard due to general and abstract characteristic of law. Thus, it no longer works when the law is unclear and ambiguous (e.g., the people don’t know about what is forbidden). In particular, an unclear and ambiguous law increases the possibility to lead the suppression of freedom of expression (one of the basic human rights). Therefore, the law should clarify the object of regulation. Unless the law plays the role in regulation of the object, it is likely to be unconstitutional. Consequently, as the range of existing act on the protection of children and juvenile is too broad, it should be modified to meet its legislative purpose and the principle of clarity of the law.