아동·청소년의 성적자기결정권과 형법적 개입의 한계 - 청소년성보호법상 아동·청소년성착취물의 제작, 소지, 시청을 중심으로 -

초록

The current law, which does not impose penalties on sexual acts between individuals under the age of 19 years if consensual, while penalising the production, possession, or viewing of nude images between consenting minors within the same age group, is not only manifestly unreasonable but can also be considered unconstitutional. However, it is also challenging to implement a straightforward modification that merely acknowledges the exercise of sexual self-determination rights for all children and adolescents. This is due to the fact that the current Criminal Act is predicated on the premise of regarding individuals under the age of 13 as subjects in need of protection. But when considering children and adolescents aged 13 or older, particularly in cases where the age difference is minimal and the subject of filming has given voluntary consent, it is submitted that the 'production' aspect under Article 11(1) and the 'viewing, possession' aspect under Article 11(5) of the Act on the Protection of Children and Youth against Sex Offences should be decriminalised. The purpose of this paper is to present the necessity of revising Article 11(1) and (5) of the Act on the Protection of Children and Youth against Sex Offenses: Firstly, the imposition of statutory penalties is excessively high in comparison to the regulatory standards for child pornography set forth in Japan's Child Pornography Prohibition Act or Germany's Criminal Act(StGB). Secondly, in contrast to Article 305(2) of the Criminal Act, it disregards the exercise of sexual self-determination rights by children and adolescents in special relational contexts involving a minimal age difference between parties. Thirdly, while consensual sexual acts within such special relationships involving a minimal age difference are decriminalized, the Act on the Protection of Children and Youth against Sex Offenses establishes crimes related to child pornography without considering any exceptions. In view of the aforementioned points, this paper emphasised that the provisions are unconstitutional and require statutory reform.

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