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서울북부지방법원 2018.05.24 2018노38

성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영)

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The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

The above fine shall not be paid by the defendant.

Reasons

1. Summary of grounds for appeal;

A. The lower court’s sentence (3 million won in punishment, order to complete sexual assault treatment programs for 24 hours, confiscation) against the Defendant is too unreasonable.

B. Prosecutor 1) In light of the fact-misunderstanding and legal principles as well as the 7 photographs of the instant indictment, the Defendant arbitrarily taken the body of other women more than 80 times, and considering the fact that the body of the other women was exposed to the body body part of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of which

Nevertheless, the court below erred by misunderstanding the facts and misunderstanding the legal principles that found innocence on this part.

2) In the event that the lower court found the Defendant guilty, the sentence imposed by the lower court on the Defendant is too unjustifiable.

2. As to the prosecutor's assertion of mistake of facts and misapprehension of legal principles

A. Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Etc. of Sexual Crimes, which punishs an act of photographing another person’s body against his/her will using the relevant legal doctrine, camera or other similar devices, to protect the victim of personality chain’s freedom of sexual expression and without permission.

Therefore, whether the recorded body constitutes “the body of another person, which may cause sexual humiliation or sense of shame” is objectively considered in light of whether the body falls under the body that may cause sexual humiliation or sense of shame from the perspective of the general and average persons, such as the victim’s sex and age group, as well as the background leading up to the photographer’s intent and the degree of exposure, the place of photographing, the place of photographing, the distance of photographing, the image of the taken body, and the specific image of the taken body.