A. Legal principles

The latter part of Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is a provision punishing a person who photographs another person’s body against his/her will, by using a camera or other similar mechanism with similar functions, which may cause sexual humiliation or sense of shame. As such, where the person distributes, sells, leases, provides, or openly displays or shows the photographs taken by a third party, such as the Defendant is not included in the scope of the punishment for the said crime.

B. Error of mistake

It cannot be readily concluded that the video recorded by the defendant was taken against the will of the person subject to filming (the defendant and the defense counsel stated in this court that they appealed on the grounds of misunderstanding the legal principles, but because they asserted the same purport in the statement of grounds for appeal submitted by the defense counsel, they shall be judged

2. Determination

A. Judgment on the misapprehension of legal principles

1) Article 14-2 of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (amended by Act No. 8059 of Oct. 27, 2006) provides that “a person who photographs another person’s body against the latter’s will which may cause sexual humiliation or shame by using a camera or other similar device shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won.” In addition, only a person who photographs another person’s body against the latter’s will shall be punished by imprisonment with prison labor for not more than 15 years or by a fine not exceeding 10 million won.” Article 14-2(1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (amended by Act No. 8059 of Oct. 27, 2006) provides that “a person who takes photographs against another person’s body against the latter’s will which may cause sexual humiliation or shame, or distributes, sells, or openly displays the body of the latter.”

The legislative intent of the above amended provision is not to punish the act of photographing another person's body against his will, as well as the act of distributing taken photographs against the latter's will, and to prevent the distribution of taken photographs against the latter's will to many and unspecified persons, and therefore, it does not necessarily require the subject of the distribution act to be a photographer. Such interpretation is an interpretation consistent with the language and text that explicitly lists the photographer and the distributor by stipulating "the person who takes photographs against the latter's will, or distributes, sells, leases, openly exhibits, or shows or shows the taken photographs." On the contrary, if the above provision is reduced or interpreted to punish only "the act of distributing, selling, leasing, or openly displaying or screening the taken photographs against the latter's will" as the defendant argues, if a person who takes photographs against the latter's body fails to distribute them directly and distributes them through a third party, it cannot achieve the legislative purpose prior to regulating the distribution of the taken photographs, thereby resulting in serious gap.

Meanwhile, Article 13(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter “Sexual Crimes Punishment Act”) was enacted by Act No. 10258, Apr. 15, 2010, while maintaining its regulatory form and maintaining the same. Since Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter “Sexual Crimes Punishment Act”), the interpretation thereof should be deemed as seen earlier

2) Article 14(2) of the Sexual Violence Punishment Act newly established a provision punishing “a person who distributes, sells, leases, provides, or openly displays or shows, photographs against his/her will at the time of photographing the body of a person subject to shooting, even if the photographing does not go against the will of the person subject to shooting,” which is subject to the prohibition of distributing, selling, leasing, providing, or openly displaying or showing, in the latter part of Article 14(1), “the photographing of another person’s body against his/her will”, which is not included in the scope of the punishment, was intended to additionally punish “the photographing of another person’s body at the time of photographing, which was not included in the scope of the punishment.” The latter part of Article 14(1) does not mean that only the distribution of “a person who takes the body of another person against his/her will” was punished.

3) In addition, Supreme Court Decision 2013Do4279 Decided June 27, 2013 (2013Do4279) held that, in a case where the victim himself/herself concealed his/her body parts in a video camera and transmitted information through a camera siren to the Defendant’s computer, and the Defendant stored the received information in a video file via a mobile phone inner camera with the fact that it was converted to a video, the subject of punishment under the foregoing provision is limited to the case where “the body himself/herself of another person” is taken by using mechanical devices such as a camera, and on the premise that the subject of punishment under the foregoing provision is limited to the case where “the body himself/herself of another person” is taken by using the mechanical devices such as a camera, and it does not constitute a crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes) and thus, it is not appropriate to determine the subject of punishment under the former sentence of Article 13(1)6(1) of the Act on the punishment of sexual Crimes.

4) Therefore, even if one did not directly photograph another person’s body, if a photograph taken against his/her will is distributed, sold, rented, or openly exhibited or screened, the crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Catra, etc.) shall be deemed to be established. The defendant’s assertion disputing this is without merit.

B. Judgment of mistake of mistake

According to the evidence duly admitted and examined by the court below, the defendant's aforementioned assertion is without merit, since the video recorded by the defendant on the NAV is sufficiently recognized as a photographer against the victim's will.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed by Article 364 (4) of the Criminal Procedure Act, and the judgment of the court below is ex officio in accordance with Article 25 (1) of the Regulation on Criminal Procedure, "in the dormitory of the defendant located in the Gangwon-gun (location omitted)" in the last part of Article 25 (1) of the Rules on Criminal Procedure, and the defendant's appeal is corrected by adding "in the place specified in paragraph (1)" in the second part of paragraph (2) of the criminal facts.

Judges Masung-young (Presiding Judge)