딥페이크에 대한 형법적 대응 ― 반포 목적 없는 성적 딥페이크 제작의 범죄화를 주장하는 페미니스트 이론에 대한 형법적 타당성 검토 ―

The Korean National Assembly recently amended the 「Sexual Violence Prevention and Victims Protection act」 to criminalize the creation of non-consensual sexual deepfakes in an effort to address the harms associated with such acts. Generally, the creation of non-consensual sexual deepfakes that are not intended for distribution is viewed as no different from the creator's imagination or fantasy; therefore, it has been deemed inappropriate to impose penalties for such creation. The mere fact that significant social and legal issues arise from sexual deepfakes does not, on its own, justify a reassessment of the normative status of creating non-consensual sexual deepfakes. The exercise of penal power solely for the purpose of negative general prevention, without grounding in substantive harm, cannot be justified. Consequently, a critical question arises: is it justifiable to criminalize the mere creation of non-consensual sexual deepfakes? Within the legislative process in Korea, there has been a lack of theoretical justification for categorizing the creation of sexual deepfakes without distribution as an offense. This article examines the justifiability of criminalizing the creation of non-consensual sexual deepfakes, drawing on the example of the UK, which has pursued similar legislative measures, as well as the arguments presented by feminist scholars advocating for such changes. In conclusion, this article contends that the mere creation of non-consensual sexual deepfakes, absent any distribution, does not result in significant harm to either victims or society at large. Furthermore, criminalizing the creation of sexual deepfakes that occur within the private realm of the creator could be viewed as a serious infringement on privacy rights.