음란물 또는 포르노그래피 소고
Obscenity or Pornography Revisited

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서울대학교 법학연구소
법학, Vol.44 No4 pp.141-162
급진적 여성주의freedom of expression여성에 대한 폭력상대적 음란성자의적 법집행의 위험내게 거짓말을 해봐
The definition of obscenity by the Korean Supreme Court is “moralistic” in
the sense that the criminal sanction is to be taken if by the moral standards of
society a material as a whole is judged to appeal to the prurient interest by
containing detailed and offensive sexual depiction and description. The value of
freedom of expression is partially considered in the definition and accordingly a
number of literature and artistic expressions have been punished as obscene.
Recently the Korean Constitutional Court applied a new “liberal” standard,
limiting the scope of punishable obscenity to “the sexual expressions that destroy
human dignity,” and emphasized on the role of the “mechanism of ideas'
competition” before punishing obscene materials. However, this new standards has
not been practically accepted by law enforcement authorities and lower courts.
On the other hand, the radical feminist anti-pornography arguments by Andrea
Dworkin and Catharine A. MacKinnon to some extent influenced Korean
feminists. It is worth listening to the feminist voices; they wonder in defining
obscenity why prurience counts but powerlessness does not, and why sensibilities
should be protected from offense better than women from exploitation;
importantly they argue, pornography, sexualizing the male dominance, causes
harm, and the law should change to recognize and alleviate that harm.
However, it needs to take a caution against the interpretive problems inherent
in the radical feminist censorship regime. The vague concepts in the radical
feminist “anti-pornography ordinance” such as “sexual objects,” “filthy or
inferior,” “domination,” “exploitation,” and so forth, inevitably give a wide
discretion to the law enforcement authority, resulting in infringement upon the...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 44, Number 1/4 (2003)
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