2017No356, Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kamera)

(Chhographing)

A

Prosecutor

The Kim Young-Dup (Court Prosecution) and Kim Young-young (Court Decision)

Law Firm B, Attorney C

Seoul Central District Court Decision 2016 Height3815 Decided January 10, 2017

September 8, 2017

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal;

According to the evidence submitted by the prosecutor, the defendant entered into a distribution contract with the defendant on the condition that the victim did not photograph the upper half of the body body, and the defendant made a motion picture to take the upper part of the motion picture on the very flow and make a request for deletion later, while the defendant made a motion picture on the face of the exposure. However, even though the motion picture was deleted, it is recognized that the defendant distributed the motion picture containing the upper half of the body body against the victim's will such as "free deletion exposure board" and "Supervision board" against the victim's will, and it is also recognized that the defendant made a motion picture without the victim's injury.

2. Determination

1) According to the evidence adopted and examined by the lower court and the lower court, the following facts are acknowledged.

A) At the time of concluding a contract with the Defendant for 'I’s contribution, a special agreement was not added to the effect that, in principle, “A” and “B (victims) shall proceed with the physical exposure subject to sufficient prior agreement, and demand other than the contents agreed in advance may be refused.” This was a type of contract that does not coincide with the dispatch contract entered into with the Defendant.

B) L, a producer of “I”, sought words from the victim to deliver them to the defendant at the time of their interference with the victim. However, as seen earlier, the contract was concluded between the victim and the defendant without any special agreement, such as the victim’s exposure of chests, and subsequent contact was also produced including the victim’s chest exposure.

On the other hand, the above distribution contract provides that "B (victim) shall permanently belong to A (Defendant) the results of all services related to the postponement provided by B in relation to the film in this case, which are produced and derived from the film in this case, including domestically and overseas, including cable TV, satellite broadcast broadcasting, video, CDs, DVD, production and distribution of OST music, wire, wireless Internet transmission, IPTV, satellite, satellite, and terrestrial DMB, mobile transmission, publication of books, publication of books, publication of character, production of character, e-mail, second copyrighted works, and second copyrighted works, which are generated and derived from the film in this case, including foreign and overseas export, and are the exclusive right holder of all intellectual property rights."

C) Until the day when the film is taken, consultation between the Defendant and the victim about the above body was not reached, but 2) the victim was placed in a group due to the Defendant’s continued opinion and decided to re-examine at the time of editing whether the body was excluded from editing. The Defendant displayed the victim’s editing version during the film editing process around August 2012.

On October 25, 2012, the victim confirmed the film editing text, and the victim said that "the defendant excluding 's chest exposure area' was called "the victim', and the defendant opened and screened the film at the theater in a state where the victim accepted the victim's intent on October 25, 2012 and deleted the chest exposure area.

D) However, the Defendant, after a lapse of one year from one year thereafter, editd and distributed the deleted plates, including the victim’s chest exposure surface, and did not ask the victim a separate question or seek understanding.

2) The court below's decision that, even if we look at the evidence submitted by the prosecutor and investigated by the prosecutor, the evidence submitted by the prosecutor alone cannot be deemed to have been proved without any reasonable doubt that the defendant distributed motion pictures against the victim against the victim's will or reported false facts, and there is no error of mistake of facts as alleged by the prosecutor.

A) Although the victim’s intent appears to have been delivered to the Defendant through L at the time of avoiding the victim’s interference, it was not concluded in the way that the victim’s photograph was finally excluded from the shooting of such pages. Rather, in light of the special terms and conditions under the contract, it appears that the Defendant and the victim agreed to continuously determine the level of the exposed surface.

B) In light of the series of consultations that had been punished between the Defendant and the victim surrounding the shooting and editing of the chest exposed area, it is difficult to view that the Defendant had intended to screen the theater film and delete the victim’s chest exposure area, and it is difficult to view that the Defendant had finally promised to exclude all the above pages from the film of a variety of plates that are anticipated to be distributed through a variety of sets in the future. Rather, there seems to have been no separate discussions on these matters.

C) ① The result of all services rendered by the victim in relation to the film of this case is on a permanent basis to the Defendant, and accordingly, the Defendant seems to have such authority as the Defendant had the authority to make a final decision on the editing without the victim’s chest exposure, including whether the victim’s chest exposure should be included, in light of the contents of a prote contract providing that “the Defendant has the intellectual property rights to various forms and the derivatives and modified works related to the film of the film,” and the purport of the unfolder who is beyond the scope of various restrictions on the motion picture of the film of the film of this case (ii) the motion picture of the film of the film of this case is carried out, and the motion picture of the film supervisor was disclosed to the site that was not included at the time of opening the motion picture.

D) Even if there were contractual obligations to have been determined by consultation with the victim even if the victim’s chest exposure area was included in the victim’s chest exposure area under the intent of the vessel contract, it is difficult for the Defendant to clearly recognize such contractual obligations. Therefore, it is difficult to readily conclude that the Defendant did not go against the victim’s will while recognizing the breach of duty.

3. Conclusion

The prosecutor's appeal is dismissed.

Judges Lee Lee-chul-chul

Judges Song Jae-chan

Judges Park Young-young

1) In addition, even if there was no oral promise of the above terms or the above contents, insofar as the Defendant agreed to delete the exposure of chest at the victim’s request at the time of opening the theater film, the victim’s chest exposure cannot be used unless there was a separate agreement on the use of chest exposure in the supervisory board, deletion board, etc.

2) 피해자의 당심 법정에서의 증언 내용 "영화 찍는 날 그떄 불러서 그날에 저는 계속 싫다고 하니까 그날 그러면 빼줄 테니까조건을 제시하셔서 알겠다고 하고 그날 저녁에 촬영에 들어간 겁니다. 조건을 그날 해주신 겁니다."

3) The lower court did not accept the victim’s statement on the ground that the credibility of the victim’s statement was lower. Even if considering the result of the further examination of evidence conducted in the first instance court, the lower court’s determination on the credibility of the victim’s statement was clearly erroneous or it is considerably unreasonable to maintain the judgment as it is, and the result of the examination conducted in the first instance court at the request of a prosecutor was similar to that of the witness examination at the lower court, and there is no special circumstance or reason to determine the credibility of the statement differently from the lower court.

In addition, according to the results of the examination on AF conducted in the trial at the request of a prosecutor, only the circumstances where the filming was temporarily interrupted due to internal consultation between the defendant and the victim can be acknowledged, and there was no specific talk between the defendant and the victim at the time, and there was an agreement with the content of such consultation.

4) The reduction of overly tension, the mitigation of film expression methods taking into account film rating, and artistic compromises, taking into account commerciality.