아동･청소년이용음란물의 범죄구성요건에 대한 검토

The question of what constitutes child pornography is complex. The standards applied are often subjective and contingent upon moral, cultural, social situation and religious beliefs. Furthermore, these standards do not translate into law in the strictly judicial sense. Legal definitions of both children and child pornography may differ globally. Child pornography is defined as 'any visual or audio material which uses children in a sexual context. It consists of the visual depiction of a child engaged in explicit sexual conduct, real or simulated, or the lewd exhibition of the genitals intended for the sexual gratification of the user, and involves the production, distribution and/or use of such material'. Some researches reported that child pornography was usually used in the sexual crimes, especially child sexual abuse. Such pornographical material is used in different ways. Some perpetrators use it to coerce children into submission, others to legitimise the act so that they see it as acceptable behaviour, and a third group uses pornographic material in self-stimulation preceding sexual abuse. Children that are exploited in child pornography are automatically exposed to abuse, as it depicts the sexual acts of child. The child pornography normally depict explicit sexual activities in the form of physical contact, masturbation, adult and child sex, and sex between children. Children abused in child pornography usually suffer from the serious traumas comming from sexual abuses. The provisions which prohibits the possession of child pornographic material for seducing the child is needed to be reenacted. It is considered as valid to punish the possession of child pornography, because the child pornography crimes are very harmful to the youth. But It also includes the possibilities of overpunishing, because some legal constituents of child pornography crimes are abstract and wide in some aspects. So it is needed to be defined more rigorously the constituent requirements in order to avoid the risk of arbitrary punishing. For example, it is considered as a way to be added to the constituent elements that require a certain time continuity in legal requirements of the possession of child pornography. Elements of this continuity may be a sign showing that simple possession is combined with a kind of malicious intent. Another way is to require the deliberate intents as a subjective requirements of possession of child pornography. the intents should not be estimated in possession of pornography, and would have to be proven to possess the pornography with more than a clear recognition by the suspects.