Supreme Court: "Possession of Child Pornography with Enhanced Punishment Requires Proof of 'Intent to Sell'"

The Supreme Court has ruled that in order to apply enhanced punishment to individuals possessing obscene materials involving children and adolescents, it must be specifically proven that there was an intent to sell or distribute such materials.

Supreme Court, Seocho-gu, Seoul

According to the legal community on the 21st, the Supreme Court's Third Division (Presiding Justice No Jeong-hee) recently finalized the original ruling sentencing Baek Mo to eight months in prison for violating the Youth Protection Act and fraud charges.

Baek was indicted for possessing 2,121 obscene materials featuring adolescents from February to April 2020 and deceiving others by pretending to sell them, thereby swindling cultural gift certificates worth approximately 600,000 won. Under the former Youth Protection Act, simply possessing obscene materials involving children and adolescents is punishable by up to one year in prison or a fine of up to 20 million won, while possessing such materials with the intent to sell, rent, distribute, or provide them is punishable by up to ten years in prison.

The key issue in the trial was which punishment clause should be applied to Baek. The prosecution argued that Baek's possession was recognized as 'for profit,' warranting enhanced punishment. In contrast, Baek claimed there was no actual intent to sell.

The first trial court sentenced Baek to ten months in prison, but the appellate court accepted Baek's claim and reduced the sentence to eight months. The appellate court held that to apply the heavier punishment clause, it must be concretely proven that the materials were possessed with the purpose of 'selling, renting, distributing, or providing.'

The Supreme Court also found no problem with the appellate court's judgment. It dismissed the prosecution's appeal, stating, "There is no error in the lower court's judgment that violates the rules of logic and experience or exceeds the limits of free evaluation of evidence, nor is there a misinterpretation of the legal principles concerning the meaning of 'for this purpose' as stipulated in Article 11, Paragraph 2 of the former Youth Protection Act."

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