아동․청소년 딥페이크 합성물과 청소년성보호법상 ‘등장’ 개념의 재해석 -대법원 2023. 8. 31. 선고 2023도8611 판결과 대법원 2025. 8. 14. 선고 2024도17801 판결의 비교를 중심으로-

With the rapid development of artificial intelligence technologies, so-called “deepfake” sexually exploitative materials—created by combining the faces of real individuals with sexually explicit images or videos—have increased significantly. In particular, cases in which the faces of real children or adolescents are superimposed onto sexually explicit content have raised important legal questions as to whether such composites constitute “sexually exploitative material involving children or adolescents” under the Act on the Protection of Children and Youth Against Sexual Offenses. Article 2(5) of the Act distinguishes between two categories: (1) sexually exploitative material in which children or adolescents appear, and (2) sexually exploitative material in which a person or expression that can be clearly recognized as a child or adolescent appears. However, judicial interpretations have not been consistent regarding how to classify cases in which the faces of real minors are used in sexually explicit composite images. This article examines the interpretative issues concerning whether deepfake composites involving the faces of real children or adolescents fall within the scope of sexually exploitative material under the Act, focusing on a comparative analysis of the Supreme Court decisions of August 31, 2023 (2023Do8611) and August 14, 2025 (2024Do17801). In particular, the study analyzes the legislative history, normative structure, and protected legal interests of the Act, while critically evaluating the limitations of the second decision’s interpretation of the concepts of “appearance” and “clear recognizability.” The analysis suggests that when the face of a real child or adolescent is used in sexually explicit material, the use of that child’s identifiable personal marker for sexual purposes constitutes the representation of the child or adolescent in the material, regardless of the method of production or the absence of actual participation in filming. Therefore, such material should be interpreted as sexually exploitative material in which a child or adolescent appears, consistent with the statutory language, legal structure, and the protected interests of the law. By contrast, the provision concerning material in which a “person or expression that can be clearly recognized as a child or adolescent” appears should be understood as a supplementary provision intended to regulate virtual depictions or adults who appear youthful. Ultimately, interpreting deepfake composites involving the faces of real minors as material in which children or adolescents appear better aligns with the legislative purpose of protecting minors and responding normatively to emerging forms of sexual exploitation in the digital environment.