(영문) 춘천지방법원 강릉지원 2012. 11. 15. 선고 2012고단438,776(병합) 판결[성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영)·강요·협박][미간행]
Defendant
Red-H (prosecution) and Kim Sung-sung (Public trial)
Attorney Kim Hun-woo (Korean)
A defendant shall be punished by imprisonment for not more than ten months.
Of the facts charged in the instant case, the charge of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras) shall be acquitted.
1. Compelling;
On June 2, 2012, from around 21:38 to 20:11, the following day, the Defendant: (a) demanded the victim Nonindicted 2 (n) and the victim Nonindicted 2 (e.g., 15 years old) who became aware of the Defendant’s home located in Gangnam-si (hereinafter address omitted) through the Kakakakao Kakao Kakao Kakao Kakao Kakao Kakao Kakao Kao Kakao, and the victim refused to transmit the Defendant’s chest and body, but the victim refused to transmit the Defendant’s chest Kao Kao Kao Kao Kao Kao Kao Kao Kao Kao Kao Kao Kao Kao Kao Kao Kao Kao Kao.
2. Intimidation;
피고인은 2012. 6. 3. 15:21경 제1항과 같은 장소에서 피고인의 휴대전화를 이용하여 위 피해자가 사용하는 휴대전화로 “넌봐죽어서너학교너동네애들쫙깔아나서너잡으라고봐그리고동영상너학교앞에서다뿌루리것야너학교못다니게인터넷에도오리고너학교싸이트에도오리것야봐”라는 문자메시지를 보내는 등 별지 범죄일람표⑵의 기재와 같이 모두 7회에 걸쳐 피해자에게 문자메시지를 보내어 피해자를 협박하였다.
1. Defendant's legal statement;
1. Each police statement on Nonindicted 3 and Nonindicted 2
1. Kakao messages printed out, and text messages printed out;
1. Article relevant to the facts constituting an offense and the selection of punishment;
Article 324 ( point of Compelling) of the Criminal Act, Article 283 (1) of the Criminal Act ( point of intimidation and Selection of Imprisonment)
1. Aggravation for concurrent crimes;
Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act
The punishment as ordered shall be determined by taking into account various circumstances, such as the defendant's age, environment, motive for committing a crime, circumstance after committing a crime, etc., where the nature of the crime of this case is bad, such as the crime of this case, such as the degree of intimidation, serious degree of intimidation, etc., where the defendant is a mentally disabled person of Grade III, where the defendant has a mental disorder, such as depression and shock disorder, and there is no history of punishment for a punishment heavier than a fine or for a criminal record of the same kind.
1. Facts charged;
No person shall take photographs of another person's body, which may cause any sexual humiliation or sense of shame, using a camera or similar mechanism, against the latter's will, or distribute, sell, lease, or openly exhibit or show such photographs to the public.
Nevertheless, at around 12:50 on April 10, 201, the Defendant taken the body of the victim against his will in a total of 11 times in the following manner: (a) the victim Nonindicted Party 1 (the age of 14) and mobile phone images, Internet NAT-to-Internet video hosting, etc., using the Defendant’s cell phone with inherent camera functions, which may cause sexual humiliation or shame, using the Defendant’s cell phone with inherent camera functions; (b) and (c) the victim’s cell phone-to-face, such as fingers, sound, etc., taken against the victim’s will, from that time, until June 12, 2011.
2. Determination:
The interpretation of a penal provision shall be strict, and the interpretation of a penal provision in the direction unfavorable to the defendant shall not be permitted as it is against the principle of no punishment without the law (see Supreme Court Decision 2009Do3053, Dec. 10, 2009, etc.).
According to the evidence duly adopted and examined by this court, it is recognized that the defendant photographs the images of the victim, such as the bank room and the sound, etc. of the victim who sent the victim by video-recording via the Internet using mobile phones as stated in the facts charged. However, according to Article 13(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, it is limited to "the body of others" and thus, taking such images does not constitute the elements of the above penal provision.
Thus, the above facts charged constitute a case that does not constitute a crime, and thus, is acquitted under the former part of Article 325 of the Criminal Procedure Act.
[Attachment]
Completion of Judge
1) If the Defendant disseminates the above images, it is possible to punish the Defendant by using a communication medium under Article 12 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, depending on the case, such as the distribution, etc. of obscenity under Article 243 of the Criminal Act.