[2] Whether a photographic recording of another person’s body itself constitutes only a photographic recording of another person’s body, as stipulated in Article 14(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (affirmative), and whether a photographic recording of another person’s body is also applicable (negative)

[3] In a case where the Defendant was indicted for violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amera, etc. of Sexual Crimes) on the ground that he provided “the photographer who taken the body of A” against his will although he did not go against the Defendant’s will at the time of filming by sending three copies of the video files taken under the agreement with the Defendant, using a mobile phone text message function in the name of two pages, and provided “the photographer who taken the body of A” against his will, the case holding that the Defendant’s photographer who taken the cell phone on the monitor after reproducing the video files using a computer does not constitute the photographer as provided in Article 14(2) of the same Act

[2] Article 14(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) provides that “a person who distributes, sells, leases, provides, or openly displays or shows, photographs against his/her will even if they do not go against the will of the person to be taken at the time of taking the pictures.” Paragraph (2) of the same Article provides that “a person who distributes, sells, provides, or openly displays or shows such photographs against the will of the person to be taken shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding five million won.” The aforementioned Paragraph (2) of the same Article provides that “the subject of taking the pictures shall be deemed to be “the body of another person” in relation to the subject of taking the pictures of another person.” As such, the subject of taking the pictures of Article 14(1) of the Sexual Crimes Punishment Act shall also be construed as “the body of another person to be taken” in interpreting the meaning of “the body of another person to be taken” shall not be deemed to fall under the body of another person to be taken photographs.

[3] In a case where the defendant among the video files taken under the agreement with Gap in a sexual relationship, was prosecuted for violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amera, etc. of Sexual Crimes) on the ground that the defendant provided "the photographs of Gap's body" against his will although it did not go against Gap's will at the time of photographing by using three copies of cell phone text messages from which Gap's sexual organ was fast-in or taken by hand, and then sent them to Eul's mobile phone using the cell phone text message function in the name of two pages, the case held that the court below erred by misapprehending the legal principles as to Article 14 (2) of the same Act, which found the defendant guilty on the ground that the video files of sexual relation do not constitute the act of photographing Gap's body itself, even if the video files were reproduced by computer and then taken by a cell phone camera, and thus, they did not constitute the act of photographing Gap's body itself, and thus, the photograph taken does not constitute the photograph as provided in Article 14 (2) of the same Act.

1. Of the facts charged in the instant case, the summary of the Defendant’s violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (camera, etc.) is the victim’s wife’s cell phone using a cell phone text message function in the victim’s name, where the Defendant sent three photographs showing the victim’s sexual organ as soon as possible or face-to-faced by hand from among the video files taken by the Defendant in sexual intercourse with the victim, and then the Defendant later provided the victim’s wife with “the photograph taken of the victim’s body” against the victim’s wife at the time of filming.

2. Based on its stated reasoning, the lower court affirmed the first instance judgment convicting the Defendant of the aforementioned charges on the ground that the act of taking pictures of sexually related video files taken by the Defendant in a computer and then sending such pictures to the cell phone of the victim’s wife constitutes “an act of providing the photos of another person’s body against the victim’s will” under Article 14(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”).

3. However, it is difficult to accept the above determination by the lower court for the following reasons.

(1) Article 14(1) of the Sexual Violence Punishment Act provides that “a person who takes photographs of another person’s body against his/her will that may cause sexual humiliation or shame, or who distributes, sells, leases, provides, or openly displays or shows such photographs publicly against the latter’s will, shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won.” Since the foregoing provision provides that the subject matter of filming is “the body of another person”, only the act of taking photographs of another person’s body itself constitutes “the act of taking photographs of another person’s body” as provided in the foregoing provision, and does not constitute an act of taking photographs containing images of another person’s body (see Supreme Court Decision 2013Do4279, Jun. 27, 2013).

Meanwhile, Article 14(2) of the Sexual Violence Punishment Act provides that "a person who distributes, sells, leases, provides, or openly displays or shows photographs against his/her will even if they do not go against the will of the person subject to the photographing at the time of photographing, shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding five million won." Article 14(2) of the said Act provides that "the subject of the photographing shall be subject to the ex post facto act of distributing photographs, etc., which do not go against the will of the person subject to photographing," and provides that "the subject of the photographing shall be defined as "any third person's body," and the subject of the photographing under Article 14(1) of the Sexual Violence Punishment Act shall also be construed as "the subject of the photographing of another person's body," and there is no ground to view the meaning of "the body of another person's body," as seen earlier, in interpreting the meaning of the photographing of a photograph of another person's body, as seen in the foregoing paragraphs (1) and (2).

(2) Examining the facts charged in light of the aforementioned legal principles, even if the Defendant took a video recording recording on a cell phone after reproducing a sexually related video file into a computer, this does not constitute an act of directly photographing the victim’s body itself. Thus, the photographer does not constitute a photographer as provided in Article 14(2) of the Sexual Violence Punishment Act. Nevertheless, the lower court erred by misapprehending the legal doctrine on Article 14(2) of the Sexual Violence Punishment Act, which found the Defendant guilty of the aforementioned facts charged.

(3) As can be seen, the lower court’s judgment should be reversed in its entirety, on the ground that there exist grounds for reversal of the part concerning the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras, Use and Screening of Cameras, etc.) and the remaining part

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)