The defendant shall be innocent.

A. Defendant:

(1) Legal principles

The instant pictures do not have taken the body of another person, which may cause sexual humiliation or sense of shame.

(2) Unreasonable sentencing

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

B. Prosecutor,

The sentence of the court below is unfair because it is too unhued.

2. Judgment on the Defendant’s assertion of misapprehension of legal principles

A. Summary of the facts charged and the judgment of the court below

(1) Summary of the facts charged

On December 1, 2014, the Defendant, within the subway line 2 from the new forest station located in the Southern East-gu, Seoul Special Metropolitan City, to the ebbal basin, taken pictures of the victim C (V, 26 years old) and D (V, 24 years old) who were in the front line of subway line 2, which had been operated in the ebal basin in the Southern East-gu, Seoul Special Metropolitan City. The Defendant sent pictures of the above victims by using the Kakakakao Feck Fec, which is the mobile service, to the group hosting where four of the Defendant’s friendships were connected, such as eb.g., the Defendant taken pictures of the above victims against his will that would cause sexual humiliation or shame, and distributed them. Accordingly, the Defendant taken pictures against the victim’s body against another person’s will that could cause sexual humiliation and shame, using the devices similar to the Kamera.

(2) The judgment of the court below

The court below found the defendant guilty on the basis of the evidence produced by the court below.

B. Judgment of the court below

(1) Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that a person shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding ten million won, from a person who photographs another person’s body, which may cause sexual humiliation or shame against his/her will, using a camera or other similar mechanism, or who distributes, sells, leases, provides, or openly exhibits or shows such photographs to the public. The above provision aims at protecting the victim’s sexual freedom and freedom not taken without permission. As such, whether the taken body constitutes “other person’s body, which may cause sexual humiliation or shame” should be objectively determined by taking into account whether the body of the victim falls under “the body of another person,” such as the victim’s sex, age group, and average person’s body, such as the victim’s clothes, degree of exposure, degree of exposure, etc., the victim’s intent to take pictures, the place and distance of taking pictures, and the specific body and image of the victim’s body, etc. (see, e.g., Supreme Court Decision 2001420

(2) According to the evidence duly admitted and examined by the court below, it is recognized that the Defendant took a 20-year female 20 female 2, who was frighten as stated in the above facts charged, once again against the Defendant’s will. However, in light of the legal principles as seen earlier, it is difficult to view the instant pictures to have taken another’s body, which may cause sexual humiliation or shame, and there is no other evidence to prove otherwise.

A. The Defendant taken a back 2 female 2, who sits on the front side with a dynamic stringr, and followed up on one occasion. The instant pictures were taken as they were in the front part of the Defendant’s view at a public place. A half of the pictures is marked on the front floor, and a half of the pictures are marked on the front floor, and the two female 2 female shots are marked on the front side, and it is difficult to view that the Defendant taken a photo by emphasizing the part of a female 2 female sloping.

B. Although the clothes of two women shown in the instant pictures entered a flag, they were knee-free to knee-free, it is difficult to see that the women taken up flags or keling are merely the ordinary clothes of women who can naturally see them at a place open to the open to the public where the glag is not exposed to the flag, so it is difficult to view that they suffered sexual humiliation beyond the uncomfortable sense of sexual humiliation.

(3) Therefore, the facts charged in this case should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of crime. Nevertheless, the judgment of the court below which found the defendant guilty is erroneous by misunderstanding the facts, which affected the conclusion of the judgment

3. Conclusion

Therefore, the appeal by the defendant's assertion of the misapprehension of the legal principles is with merit, so the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without omitting the determination of the allegation of unfair sentencing by the defendant and the prosecutor,

The summary of the facts charged of this case is the same as that of 2-A, which constitutes a case where there is no proof of crime as stated in 2-b, and thus, a defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Bo Il-ju

Judges Cho Jae-soo