Even if the Defendant’s toilet which the victim sits down is the victim’s Handphone, even if the Defendant’s body was not carried out, it is directly capable of photographing the victim’s body at any time. Thus, it should be deemed that the Defendant commenced the commission of the crime of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “the crime of photographing the Use of Cameras, etc.”) (hereinafter “the crime of photographing the Use of Cameras, etc.”). Nevertheless, the lower court acquitted the Defendant of the facts charged in the instant case, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. The facts charged in this case

On January 24, 2019, when the defendant entered the south/Y commonization room located on the first floor of the building C located at regular Eup at regular Eup on January 15:00, the defendant was able to take the victim's cell phone by inserting the victim's cell phone at a bottom space where the victim D (name, leisure, age 45) reported a melting side of the building C, and the victim was discovered from the victim's cell phone so that the victim could not take the wind.

Accordingly, the defendant tried to take another person's body, which could cause sexual humiliation or shame by using a mobile phone camera, against his will, and attempted to take a photograph of another person's body.

B. The judgment of the court below

The court below found the defendant not guilty on the ground that the evidence presented by the prosecutor alone was insufficient to recognize the above facts charged because it was difficult to view that there was a commencement of the crime of using a camera, etc. and there was no steam to acknowledge it differently.

C. Judgment of the court below

In addition to the following circumstances acknowledged by the evidence duly adopted and examined by the court below, the evidence submitted by the prosecutor alone is insufficient to acknowledge that the defendant started the execution of photographing with the intention to photograph another person's body. Thus, the judgment of the court below which acquitted the defendant on the ground of its stated reasoning is just and it is not erroneous in the misconception of facts as argued by the prosecutor. Accordingly, the prosecutor's assertion is without merit.

1) The Defendant has consistently denied the Defendant’s act of photographing a mobile phone from the toilets since the investigative agency to the court of the trial, by putting the cell phone into the floor and cutting the cell phone while he was seated with her hand, and by consistently denying the Defendant’s act of photographing the victim’s image in the next partitions.

2) Even in accordance with the statements in the investigative agency and the court below, the victim did not directly see the body of the victim, but merely see the body part of the cell phone set as the body part of the victim with the body part of the victim 1/3 as the body part of the body part of the victim, and there was no witness to hear the body part of the victim or to witness the body part of the victim, and there was no video to verify the body part of the victim.

3) In order to start the commission of the crime of using camera, etc., a direct and specific act for photographing shall be initiated at least by specifying the subject of shooting, such as using cameras, etc., and moving cameras in the direction of the subject of shooting. According to the Defendant’s digital forensic results with respect to the Defendant’s mobile phones, there was no record of execution of cameras from the Defendant’s mobile phone before and after the point of time indicated in the facts charged, and no doubtful material, such as photographs or videos, etc., was found (in investigation records, 126 to 129 pages).

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Namnam-do

Judges Choi Jong-ap