성폭력처벌법상 통신매체이용 음란죄의 성립요건

Abstract

Act On Special Cases concerning the Punishment of Sexual Violence Crimes Article 13 (Obscene Acts by Using Means of Communication) A person who sends another person any words, sounds, writings, pictures, images, or other things that may cause a sense of sexual shame or aversion by telephone, mail, computer, or other means of communication, with intent to arouse or satisfy his/her own or the other person's sexual urges, shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 20 million won. Today, with the development of science and technology, smartphone use and mobile environment become common, and new types of crimes such as obscene behavior using communication media are frequently punished for obscene use of communication media under Article 13 of the Sexual Violence Punishment Act. The protective legal interest of this crime is to guarantee the right not to encounter pictures that cause sexual shame against the right to sexual self-determination, the protection of sexual self-determination and general personal rights, and the establishment of healthy sexual customs in society. The constituent requirement of obscene use of communication media is to “reach words, sounds, writings, pictures, videos, or objects that cause sexual shame or disgust” through phone calls, mail, computers, or other communication media for the purpose of inducing or satisfying sexual desires of oneself or others. Here, since the crime of obscene use of communication media is not intended to punish the general pornography regardless of means, it is required to use communication media.Due to these regulations, it is not punishable by the principal crime if the act of “directly” reaching the other party or using “other indirect means (quick service, delivery, etc.) Considering that it is more important for the victim to receive sexual humiliation than to use a means of communication media, legislatively, it is possible to consider how to punish the victim regardless of whether he or she uses a non-communication media by deleting the part “through phone, mail, computer, or other communication media.” In addition, since it must be reached by the other party, it is included not only in direct contact with a specific other party, but also in a state where it can be recognized. Considering that the main protection law for obscene use of communication media is the right to sexual self-determination and that it can fall under the constituent requirements regardless of the consent or consent of the other party (victim), legislatively, it is necessary to define it as “a person who has reached the other party's will.” On the other hand, furthermore, there should be a purpose to induce or satisfy the sexual desire of oneself or others. The “sexual desire” here includes the desire to obtain psychological satisfaction, and even if it is combined with anger, it should be said that it is not something to look at differently.