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The judgment of the court below is reversed.
The defendant is not guilty. The summary of the judgment against the defendant shall be published.
Reasons
【Judgment on Grounds for Appeal】
1. The summary of the grounds for appeal is that the defendant did not intentionally photograph the victim's bridge and telegraph, but only Kameras was loaded and operated, and even if not, it is not so.
Even if the body part of the victim taken by the defendant does not constitute "the body that may cause sexual humiliation or shame" under Article 13 (1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11556, Dec. 18, 2012; hereinafter the same shall apply), the court below erred by misapprehending the facts or by misapprehending the legal principles.
2. Article 13(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that an act of photographing another person’s body, which may cause sexual humiliation or shame, by using a camera or other similar mechanism, shall be punished against the latter’s intent.
This is to protect the victim’s sexual liberty and freedom of not being taken without permission. As such, whether the recorded body constitutes “the body of another person who may cause sexual humiliation or shame” should be objectively determined by taking into account whether the body falls under the body that may cause sexual humiliation or shame from the perspective of an average person of the same gender and age group as the victim, and the degree of exposure as the victim’s body, as well as the background leading up to the photographer’s intent, the place and location of photographing, and the distance of photographing, the image of the taken body, the image of the taken body, and the importance of the specific body body body.
(See Supreme Court Decision 2008Do7007 Decided September 25, 2008). According to the evidence duly adopted and examined by the court below, the time when the defendant started to take photographs recorded in a camera around 23:50 on July 10, 2012.