2019No1828 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use of Cameras, etc.)

(Recording)

A

Prosecutor

Yellow leap ships (prosecutions), gamblings (public trial)

Law Firm Min & Lee, Attorney Lee Min-woo

Seoul Eastern District Court Decision 2019Da3197 Decided November 29, 2019

June 18, 2020

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

(a) Fact-finding (a point of using photographs, such as a camera for victim B);

In light of the fact that the defendant taken the body of the victim B without the consent or permission of the victim B, even though the defendant and the victim B were dead, it is difficult to view that the victim had the victim's presumed consent or consent even if they were to have taken the photo of the sexual upper body during his own possession, and that allowing the victim B to delete the photo is only after the crime was committed, the judgment below which acquitted the defendant of this part of the facts charged is erroneous.

B. Unreasonable sentencing

The sentence of the lower court (a fine of three million won, an order to complete a sexual assault treatment program 40 hours, confiscation) is too unhued and unreasonable.

2. Determination

A. Judgment on the assertion of mistake of fact

In full view of the circumstances admitted by the evidence duly admitted and examined, the lower court determined that the evidence alone, which was presented by the prosecutor, is insufficient to acknowledge that the Defendant taken the victim B’s body photograph against the victim B’s will, and that there was no other evidence to acknowledge it.

In light of the relationship between the defendant and the victim B, this case is justified to have acquitted the defendant of this part of the charges on the grounds as stated in its reasoning, considering the fact that the log-record of the photograph deleted in the digital forensic process on the mobile phone of the defendant was discovered and investigated, and the victim B also stated that the defendant was an act committed in the course of provoking for the purpose of shouldering the low amount of money, etc.

Therefore, there is no error of law that affected the conclusion of the judgment by misunderstanding facts as pointed out by the prosecutor in the judgment below.

B. Determination on the assertion of unfair sentencing

The crime of this case is a situation unfavorable to the defendant because the defendant taken the body of the victim E with shower using a cell phone function, and the nature of the crime is poor.

On the other hand, there are circumstances favorable to the defendant, such as the fact that the defendant recognized the crime of this case, the fact that the defendant agreed with the victim E, the primary crime, the fact that the video is deleted immediately after the shooting, and the fact that the video is not disseminated.

In addition, in full view of the arguments and records of the instant case, the lower court’s sentencing appears to have been appropriately determined by taking into account the above normal relationship and the grounds for sentencing alleged by the prosecutor, and there are no special circumstances to the extent that the sentencing is changed ex post facto, so the Prosecutor’s assertion of unfair sentencing is without merit

3. Conclusion

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

The presiding judge and assistant judge;

Judges Lee Jae-in

Judges Kim Gung-dong