성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영)
The judgment below
The non-guilty part shall be reversed, and this part of the case shall be remanded to the District Court.
The grounds of appeal are examined.
1. Summary of the facts charged and the judgment of the court below
A. On March 7, 2018, the Defendant: (a) taken the front of a female victim’s inner part of the inner part of the passenger who sits in front of the subway station 3 lines located in Goyang-si, Goyang-si with a mobile phone with a camera function (hereinafter “instant mobile phone”).
In addition, from March 7, 2018 to April 18, 2018, the Defendant taken photographs of the body of the victims who could cause sexual humiliation or shame on seven occasions, such as the list Nos. 1 to 4 of the crime inundation table of the lower judgment, against their will.
B. The lower court reversed the judgment of the first instance court convicting the Defendant of this part of the facts charged on the following grounds: (a) the police officer’s seizure of the instant mobile phone device (Evidence No. 1) and its memoryed storage information cannot be recognized as admissibility of evidence; and (b) it constitutes a case without proof of crime on the ground that there is no proof of crime.
1) The seizure without a warrant under Article 218 of the Criminal Procedure Act is not permitted at the place of arrest in the act of committing an offense. 2) Even if it is possible to seize voluntarily produced articles pursuant to Article 218 of the Criminal Procedure Act at the place of arrest in the act of committing an offense, the defendant’s voluntary submission of the instant mobile phone may be suspected, but
2. Determination
A. The part that the seizure under Article 218 of the Criminal Procedure Act regarding the cellular phone of this case, which is the premise of the judgment of the court below, is unlawful is not acceptable for the following reasons.
1. Any person who is committing or immediately after the seizure under Article 218 of the Criminal Procedure Act at the site of the arrest of a flagrant offender in the act of committing an offense shall be subject to a warrant.