Charged with production and possession of obscene materials obtained through threats... "Possession of obscene materials is absorbed into production offense"
[Asia Economy Reporter Baek Kyunghwan] The Supreme Court has ruled that if a producer of obscene materials involving children and adolescents possesses those materials, they cannot be additionally punished for possession separate from the production charge. The interpretation is that unless the individual newly possesses obscene materials they produced themselves, they cannot be penalized.
On the 26th, the Supreme Court's 2nd Division (Presiding Justice Lee Dongwon) overturned the lower court's ruling that found defendant A guilty of possession of obscene materials in addition to violations of the Act on the Protection of Children and Juveniles from Sexual Abuse (Youth Sexual Protection Act) and remanded the case to the Chuncheon branch of the Seoul High Court.
A was prosecuted on charges of producing and possessing 162 illegal videos after instructing minors using a counseling app from December 2019 to January this year to photograph their genitals and sending the images and videos. Additionally, A was charged with receiving and storing 276 illegal videos involving minors from unidentified persons on a mobile phone.
The first trial recognized A’s guilt on charges including production and distribution of obscene materials under the Youth Sexual Protection Act, similar sexual acts, forcible molestation, and possession of obscene materials, sentencing A to seven years in prison, 40 hours of sexual violence treatment programs, five years of information disclosure, and a 10-year employment ban at child and youth-related institutions. A appealed, but the appeal was dismissed.
However, the Supreme Court’s judgment differed. It held that if possession occurs as a result of producing obscene materials, only the production charge should be punished. Possession charges can only be additionally punished if there is recognition of new possession beyond the production act.
The court stated, "It is reasonable to consider that the crime of possession of obscene materials is absorbed into the production crime when a person who produced child and adolescent obscene materials possesses those materials. If a separate possession act that can be socially regarded as new possession beyond the possession accompanying production is initiated, it corresponds to a possession crime separate from the production crime," the ruling said.
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