‘성매매알선 등 처벌에 관한 법률’상 성매수광고죄의 실무상 문제점과 해석상 한계

초록

Article 20 (1) iii of the ‘Act on the Punishment of Arrangement of Commercial Sex Acts’(‘Act’) criminalizes advertisements that solicit or induce the purchase of sexual services. A practical question arises as to whether, in cases involving the Internet or smartphone-applications, the posting of messages by a seller, subsequent contact with a prospective buyer, and the proposal or negotiation of sexual services may themselves constitute the separate offense of advertising for the purchase of sexual services. Some lower courts have acquitted defendants on the grounds that merely opening a chat room or communicating with a particular person does not amount to advertising. However, appellate courts have generally reversed such decisions, reasoning that conduct inviting contact in a space accessible to an indefinite number of persons and presenting the terms of prostitution may, when viewed as a whole, constitute an advertisement. The interpretation of this provision must follow the general principles applicable to penal statutes, including textual, systematic and logical, historical, and purposive interpretation. The Supreme Court of Korea has held that penal statutes must be strictly construed and may not be excessively expanded to the disadvantage of the accused, while also recognizing that purposive interpretation is permissible so long as it remains within the ordinary meaning of the statutory language. More recently, however, the Court has suggested that where the statutory text is clear, other interpretive methods should be limited. Yet statutory language can rarely be regarded as ‘clear’, because its dictionary meaning and ordinary usage may differ and its application necessarily involves interpretation by investigators and judges. Under this approach, the offense of advertising for the purchase of sexual services requires a concrete connection between the advertisement and prostitution. It is insufficient that an expression merely appears capable of being understood as a solicitation or inducement of prostitution. Moreover, in light of the dictionary and ordinary meaning of ‘advertisement’, the communication must be directed at an indefinite number of persons. Even where a message directly or indirectly refers to prostitution, it should not be treated as an advertisement if it is addressed to a specific individual. Therefore, a reply message sent through a mobile application to a particular person who initiated the conversation, even if it contains a solicitation or inducement of prostitution, should not be regarded as constituting the offense under Article 20 (1) iii of the Act.

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