특수폭행등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of two million won.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. misunderstanding of facts and misunderstanding of legal principles (Article 1 of the judgment of the court below) The defendant did not fall under “the body of a person who may cause sexual humiliation or sense of shame,” and the defendant taken photographs to keep evidence of the situation at the time, and did not have sexual recognition. The defendant’s Matrimonial victim B, a female of the defendant, was locked with another person, and did not have sexual recognition. The defendant’s taking pictures of one photograph for keeping evidence against social rules, is an act that does not violate social rules, and thus, constitutes a legitimate act.
B. The court below's decision on unreasonable sentencing: fine of three million won, order to complete a sexual assault program 40 hours, and destruction; and
2. Judgment on the misconception of facts and misapprehension of legal principles by the defendant
A. Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes that punishs an act of photographing another person’s body, which may cause sexual humiliation or shame, using devices with similar functions, is to protect the freedom of not being taken without the victim’s sexual freedom and without the consent of the victim of a personality chain.
Whether the photographed body of another person may cause a sexual humiliation or sense of shame should be objectively determined by taking into account whether the body falls under the body of the other person, such as the victim’s sex, age group’s general and average person, as well as the degree of exposure, etc. of the victim’s clothes, pictures, degree of exposure, etc., as well as the circumstances leading up to the photographer’s intent, place, degree and distance of filming, image of the photographed body, etc.
(See Supreme Court Decision 2015Do16851 Decided January 14, 2016). B.
Judgment
The above legal principles and the court below duly adopted and examined.