가상 청소년이용 성표현물(Virtual Child Pornography)의 위법성 구성 및 조각에 대한 연구 = 한국과 미국 사례를 중심으로

다국어 초록 (Multilingual Abstract)

The rapid development of communication technology has brought about a new concept of pornography, virtual pornography, which has raised increasingly serious social concerns. Virtual child pornography is one conspicuous phenomenon that has been centered in these concerns. Nonetheless, strangely enough, few legal analysis on virtual child pornography has been reported so far. It has been raised from all walks of life that comprehensive legal study on child pornography in cyber space needs to be made as an effort to revise the current law. Currently, in Korea, child pornography is restricted (strictly prohibited) under Minor Sexual Exploitation Prevention Act(MSEPA). MSEPA is, however, not effectively applicable to virtual child pornography, for it lacks necessary legal codes to deal with a wide range of problems of expressions in cyber space. This statute does not provide any clear legal basis on which virtual child pornography can be regulated. It is even seriously unclear about whether virtual child pornography should be regulated. Until now, there has been no single legislature or court decision that specifically addressed its current legal status.
This study investigates illegality and immunity of virtual child pornography from an strictly legal point of view. Various justifications of the relevant U.S. cases with constitutional perspective are applied to address the problems in the current Korean law and to suggest a revision of the law. This study specifically argues that the judgment of whether an actual child's participation occurred in the process of production is one of the most important factors in deciding its illegality. Obscenity is also considered an essential factor when determining its illegality. This paper suggests that a specific provision, which defines the concept of 'identifiable minors', should be included in the new MSEPA. This is because, without this provision, clarifying the scope of restriction of virtual child pornography should be fairly complicated. This paper also maintains that principle of strict liability should be applied to the producers of virtual child pornography, whereas the legal principle of strict burden of evidence should be applied to mere possessors or distributors of indistinguishable virtual child pornography, regardless of its commercial motivation.