(Decree)

Attorney C

The defendant shall be innocent.

The sentence of the court below (the fine of 2 million won, the order to complete a sexual assault treatment program for 40 hours, the confiscation) is too unreasonable.

2. Ex officio determination

A. The facts charged in this case

On May 28, 2015, at around 16:00, the Defendant installed a camera that is capable of remotely operated by connecting with radiophones under the front line of the urinals of Gangdong-gu Seoul Building, at around 16:00, in the front line of the instant toilets, and tried to keep the image of the unspecified female victims using the said area remotely, but attempted to keep the said camera back to the victim E (e.g., 59 years old), who used the said area, was found and removed.

B. The judgment of the court below

The court below found the defendant guilty by taking account of the following evidences.

C. Judgment of the court below

(1) Article 14-2(1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (amended by Act No. 10258, Apr. 15, 2010) provides that "a person who takes photographs of another person's body against his/her will, or distributes, sells, leases, or openly displays or shows his/her photographed objects against the latter's will, by using a camera or other similar mechanism, which may cause sexual humiliation or shame, shall be punished by imprisonment for not more than five years or by a fine not exceeding 10 million won." Among them, the crime of taking photographs, such as a camera, shall be deemed to have been committed if the image information on the victim reaches the state of being input in the film or storage device contained in a camera or other similar function (see Supreme Court Decision 2010Do10677, Jun. 9, 201); and thus, the crime is deemed to have been committed (see Supreme Court Decision 2010Do10677, Jun. 9, 2011).

(2) In light of the aforementioned legal principles and the following circumstances acknowledged by the court below and the evidence duly admitted and examined by the court below, it is difficult to acknowledge that the defendant commenced the act of photographing another person's body or had the intention to photograph another person's body, even if all of the evidence presented by the prosecutor was comprehensively considered. There is no evidence to acknowledge otherwise.

The defendant argued to the effect that "the chip is installed in a toilet without a chip on the part of the police because it was impossible to purchase the chip, and can be seen from the base theory through a mobile phone display without being taken by a video." The defendant argued to the effect that "the chip is not deemed hot and unsatisfed (No. 48, 49 of the Investigation Records No. 2)" from the foundation theory to the effect that "if the chip is not loaded on the cell phone, the chip shall not be activated in the cell phone display."

○ Even based on F’s statement filed the first complaint of the instant case, it stated to the effect that the instant Kameras (SOY HaNY HDAS105) did not contain a Mameras chip at the time the instant Kameras (SOY HDAS105) was discovered, that there was no video recorded in a Kameras (No. 17 pages 1 of the Investigation Records), and that E, the first discovery of the said Kameras, was discovered and removed from the office and carried out as an office, and that E, the first discovery of the above Kameras, was removed, and four employees in the office at the time, did not verify the existence of the Mameras card, but did not discover it (No. 106 of the Investigation Records).

As to the prosecution's telephone investigation, SONY Korea Consumer Center provided that, even if the images are not stored in the body in real time, if the images are not transmitted in the body, the images are not stored in the body, and the automatic storage function of the images transmitted does not stand in this model. This model answers to the purport that Wi-Fi is loaded on the device itself, and that, if the remote images are not verifiable, they can be seen as images up to 4-5 meters if they are in good environment around the end (Article 103 and 104 of the Investigation Record).

○ As a result of digital evidence analysis on the Defendant’s cell phones, four short videos with which the Defendant’s company’s business and privacy photographs, several photographs, and sexual intercourses with female-friendlys were taken, but the photograph or video recorded in the toilet of this case was not found (No. 1 of the Investigation Records No. 55, 56 of the Investigation Records).

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed and it is again decided as follows after oral argument.

【Discretionary Judgment】

The facts charged in the instant case are as indicated in the above 2-A-C, and as seen in the above 2-C-C, since the facts charged constitute a case where there is no proof of crime, the court rendered a judgment of innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the defendant does not consent to the public notice of the judgment of innocence, and thus, the purport of the public notice of

Judges Kim Gin-jin

Judge Kim Jong-hun