시각적 성 표현물 및 표현행위의 음란성 판정 기준 비판

Abstract

In its landmark decision of 1998, the Constitutional Court limited the scope of punishable obscenity to “the sexual expressions that destroy human dignity,” and emphasized the role of the “mechanism of ideas’ competition” before punishing obscene materials. However, the Supreme Court has maintained its moralist stance in obscenity cases although it eventually accepted the Constitutional Court’s position in principle in 2008. The Supreme Court has often punished visual sexual materials, including photographs, posters, paintings and theater plays, which contain detailed and offensive sexual descriptions, genital exposure in particular, even if they are not “hard-core pornography.” The Court even punished a photograph of naked art teacher and his pregnant wife, rejecting the art teacher’s defense that it was his intention to criticize the art and photography trend, which confines bodily beauty of a person in a particular shape. This photograph was later invited to the 4th Kwangju Biennale to be exhibited in the 5.18 Freedom Park. This Article argues that visual sexual materials which incorporate value of literature or arts should not be interpreted as obscene; judges should take professionals’ opinion on literature or arts much more seriously when making a normative evaluation of such materials; genital exposure in sexual materials should not be understood out of its context and simply viewed as obscene but should be interpreted and evaluated in the light of its contexts; even B-level sexual expressions lacking the value of literature or arts should not be easily judged and punished without considering their social function; proper state control of visual sexual materials that do not contain “hard-core pornography” should be administrative, not criminal, for instance, prohibition of minors’ access.