(영문) 수원지방법원 2016.10.6. 선고 2016노2601 판결

Among the videos taken by the defendant, each screen image recorded Nos. 9, 19, and 20 in the annexed list of crimes in the judgment of the court below was taken by the victims who are seated in the subway seat, and each screen image recorded Nos. 10, 11, 16, and 17 in the annexed list of crimes was taken by the victims at an open place. Accordingly, the body part of the above screen image taken by the defendant does not constitute a body that may cause sexual humiliation or shame from the perspective of the general and average people of the age group, such as the persons subject to filming.

Nevertheless, the court below erred by misapprehending the legal principles as to "the body of another person who may cause sexual humiliation or sense of shame in the crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras, Use and Screening of Cameras, etc.) by finding a guilty of all the facts charged in this case, and thereby adversely affecting the conclusion

B. Unreasonable sentencing

In light of the fact that the defendant is against the defendant, there is no record of criminal punishment, voluntary education for the prevention of sexual assault, and voluntary service activities after the crime of this case are conducted, and there is a concern that the workplace where the punishment of a fine or heavier punishment is finalized by the crime of this case may leave the workplace where the above punishment is finalized, etc., the sentence of the court below which sentenced the order to complete the sexual assault treatment program for 2 million won and 40 hours is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

(1) Article 14(1) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims, which punishs acts of photographing another person’s body, which may cause sexual humiliation or shame against the latter’s will, by using a camera or other similar mechanism, shall be aimed at protecting the victim’s sexual freedom and right not to be taken without permission. Whether the body of another person taken falls under “the body of another person, which may cause sexual humiliation or shame.” In addition, whether the body of another person taken is objectively “the body of another person,” such as the victim’s sex, age group’s general and average person, should be considered in light of the degree of exposure, not only the victim’s clothes, degree of exposure, etc., but also the developments leading up to the photographer’s intent, degree and distance of photographing, image of the taken original board, and whether the body part has emerged, should be considered relatively specific, individual, individual, and individual (see, e.g., Supreme Court Decision 2008Do78, Sept. 25, 2008).

(2) In light of the above legal principles, each video recording Nos. 9, 19, and 20 on the list of crimes attached to the judgment of the court below is taken by the defendant as well as the legs of the women who have come up with a short bucker in the front line, and each video recording Nos. 10, 11, 16, and 17 on the list of crimes at the close vicinity of the bucker area. The video recording of the defendant is merely taken by the defendant under the focus of the cucker, or by the movement of women, in the process of moving up in the front line, but the telegraph is also taken by the defendant. In light of the above legal principles, it is determined that the buck of the women who suffered a short bucker in the front line, such as subway stairs, buckbucks, etc., the victim's body or body, 10, 117, 10, 17, 17, and 17.

(3) Therefore, the judgment of the court below which found all of the charges of this case guilty is just and there is no error as alleged in the grounds of appeal.

B. Determination on the assertion of unfair sentencing

The crime of this case is not highly likely to be committed by the defendant using the camera function of the mobile phone in the subway station, and the crime of this case is deemed to have been taken 21 times the body part of the victim women such as bucks. The period of the crime is not less than 3 months, and there are many victims. The circumstances that the defendant has no record of criminal punishment are already reflected in the favorable sentencing grounds in the court below, and there are no special changes in circumstances that may be considered in the sentencing in the court below. Considering the motive and background of the crime of this case, the circumstances before and after the crime of this case, the degree of damage, and other various matters prescribed in Article 51 of the Criminal Act, which are the conditions for sentencing, such as the records and arguments of this case, the punishment of the court below is too unreasonable, considering the circumstances alleged in the grounds for appeal. Thus, the above assertion is without merit.

3. Conclusion

Since the appeal by the defendant is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.