Facts
Two of the charges against the defendant were for possession. According to the indictment, between December 2014 and May 2020 he saved 113 non-consensual sexual recordings to his phone, the first taken from a Telegram group or channel. From May 2019 to December 2020 he saved 195 items of 'false video material' (허위영상물, the statutory term for sexual deepfakes), starting with a composite he made of a female classmate's face and another woman's topless photograph. The files were seized on 16 December 2024. The offences of possessing these two kinds of material took effect on 19 May 2020 and 16 October 2024 respectively. The Gwangju High Court (Jeju) acquitted him on both possession counts on 17 December 2025.
What was the legal question in Supreme Court 2026Do541 (anonymised)?
Both possession offences were newly created, and a new criminal provision cannot apply to conduct before it came into force. The appeal court held that keeping files saved before the commencement date could be punished only if, afterwards, the defendant did something separate from the original saving to maintain or strengthen his control over them, and it found no such act proved. The question for the Supreme Court was whether possession that began before a new offence took effect and simply continued afterwards is punishable for the period after commencement.
What did the Supreme Court of Korea, Third Division decide?
The Third Division unanimously set aside the judgment. Possession means keeping material in a state one can control and continuing that control, so both offences are continuing offences, treated as one crime from when possession knowingly begins until control ends. A newly created continuing offence cannot reach conduct before it took effect, but where the act began earlier and continued uninterrupted, the period after commencement is punishable and no separate act is required. The acquittal for the pre-commencement periods was correct; possession of the deepfakes from 16 October to 16 December 2024 was punishable. Because these parts were linked to the rest, the whole judgment was quashed and remitted to the Gwangju High Court.
Why does Supreme Court 2026Do541 (anonymised) matter?
The 2024 amendment criminalising the possession, purchase, storage and viewing of sexual deepfakes followed a rise in deepfake sex crimes. The ruling settles how it applies to files collected earlier: the period before commencement stays outside the law, but anyone who keeps such files afterwards commits the offence for as long as they keep them, without downloading or saving anything again. The same reasoning covers non-consensual recordings. The judgment does not mention AI. The statutory term covers any material edited, composited or processed against the person's will, and the first file is described as a composite of two photographs.
Related stages
The case returns to the Gwangju High Court for retrial on the quashed counts; no remand judgment had been reported as of 1 November 2026. The ruling became public in May 2026 (Financial News, 18 May 2026). The defendant's own grounds of appeal against his convictions on other counts were rejected. The Supreme Court's 2025 test for when deepfakes of a real minor count as child sexual exploitation material (2024Do17801) is covered in a separate entry.