In a case where the Defendant was indicted for violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Act on the Punishment, etc. of Sexual Crimes) on the ground that he/she distributed and provided a photograph with a message, etc. stating that he/she had access to the bucks room, etc., and distributed and provided bucks to the part of the victimized female Party Gap by exposing a short half of buckbucks inside the drinking house and exposing it into his/her smartphone, and then connected to the bucks room, and then distributed and provided the bucks to the part of the victimized female Party Gap by accessing it into his/her smartphone, the case affirming the judgment of the court of first instance which convicted the Defendant.

The Defendant was indicted for violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Act on the Punishment, etc. of Sexual Crimes) on the ground that he/she distributed and provided a photograph with a message, etc. that “Bucks, Dozine, Dozine, Dozine, Dozine, and Dozine, Dozine, Dozine, Dozine, Doz., Doz., Doz., Doz., Doz., Doz., and Doz., Doz., Doz., and Doz., Doz., Doz., etc., were connected to the Defendant

The case affirming the judgment of the court of first instance that found the defendant guilty on the ground that the photograph taken, distributed, and provided by the defendant constitutes a photograph taken against his will because the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the body part of the defendant was able to cause sexual humiliation or shame from the perspective of the general and average person, and that the body part of the body part of the body part of the body part of the body part of the defendant was able to cause sexual humiliation or shame on the ground that it was taken by the defendant himself.

Article 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Defendant

Defendant

Scarland et al.

Busan District Court Decision 2017Gohap5603 Decided February 7, 2018

The defendant's appeal is dismissed.

1. Summary of the grounds for appeal (legal scenarios and unreasonable sentencing)

A. Legal principles

The photograph of this case taken by the Defendant was not taken by Nonindicted 1’s specific body parts, but taken by the telegraph. Although Nonindicted 1’s bucks were exposed to Nonindicted 1, it was merely because Nonindicted 1 suffered a short radius of the degree that young women would normally have suffered from the bucks at the time, and there was no other exposure in other parts. In particular, the Defendant was taken by Nonindicted 1, who was seated in the bucket during the process of photographing the bucks in order to contain the overall form of the bucks at the time, atmosphere, etc., and did not have taken the body as a photograph of the body that could cause sexual humiliation or shame. Thus, the photograph of this case cannot be deemed to have taken the body that could cause a sense of shame.

B. Unreasonable sentencing

The punishment of the lower court (a fine of three million won) is too unreasonable.

2. Determination

A. Legal principles

1) Article 13(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and Article 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes that punishs an act of photographing another person’s body, which may cause sexual humiliation or shame against the victim’s will by using a camera or other similar mechanism, and Article 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes aims to protect the victim’s sexual freedom and right not to be taken without permission. Whether the recorded body constitutes “the body of another person, which may cause sexual humiliation or shame.” In addition, the determination of whether the recorded body constitutes “the body of another person,” objectively, of the general and average persons of the same gender and age group as the victim, should be made by taking into account not only the victim’s clothes, degree of exposure, etc., but also the place and background leading to photographing the photographer’s intent, degree of filming and distance of photographing, taken pictures, the source and image of a specific image, etc. (see Supreme Court Decision 2008Do708).

2) Based on the above legal principle, considering the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court below, namely, the place where the defendant taken pictures, the distance from the victim’s clothes, the degree of exposure, and the circumstances leading to the defendant’s intent to take pictures, the photograph of each of the facts charged of this case, which was taken, distributed and provided by the defendant, is recognized as having been taken against the victim’s will because the body part of the victim’s body, which was taken and provided by the defendant, may cause sexual humiliation or shame from the victim’s general and average person, is deemed to constitute a photograph taken by the victim’s body against the victim’s will. The defendant himself recognized that the above photograph was taken by the victim’s body that could cause sexual humiliation or shame. This part of the defendant’s assertion is not acceptable.

① The photograph of the victim taken by the Defendant is a photograph taken by the victim, wherein the Defendant was seated by the victim’s side buckbucks, and the Defendant was exposed to the bucks, and the Defendant was seated by bucks, and the victim was seated in front of the next buckbucks. Although the telegraph of the victim was taken, the victim’s photograph was taken so much as to be in front of the front bucks and most of the screen. In particular, the victim’s exposed bucks are located at the center of the front bucks on the screen, and the victim’s upper half, face, and buckbucks were taken most clearly compared to other persons and the victim’s front bucks. Accordingly, it focuses on the victim’s bucks.

② The victim stated not only to mention the Defendant’s photographing of himself but also to the effect that “the Defendant caused a sense of sexual humiliation because his photograph was the most severe among the pictures taken by the Defendant for women at the time.”

③ At around 20:56 on the date of photographing Nonindicted 2’s photograph, the Defendant first taken a photograph of Nonindicted 2, the same camera, the victim’s day, and Nonindicted 2 was also located at the same time as the victim, and was located at the same time as the victim. However, it was small to the extent that the area of Nonindicted 2 accounts for approximately 1/9 of the taken pictures. The Defendant posted Nonindicted 2’s photograph on the “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the screen.”

After that, the Defendant: (a) received a message from a member of a group of members confirming the above pictures, such as “Ilman No. Don,” and (b) made out a message as “Ilman No. Don. Don. Don L. . . . . Don], the Defendant continued to handle the pictures for sexual purposes of the victim, and posted a photograph taken by the victim.”

④ On the other hand, during the victim’s one-way election, Nonindicted 3 was aware of the Defendant’s behavior leading up to the next table, and continued to see his photograph. Nonindicted 2 took a cell phone and took a photograph on his own. Nonindicted 2 was aware of the fact that the Defendant was aware of the victim’s photograph and reported the victim’s photograph during the process of protesting against the Defendant, and that Nonindicted 3 was aware of the victim’s photograph while informing the victim of this fact.

⑤ Although the Defendant asserted that he had taken the whole form and atmosphere of the drinking house including the victim, several people other than the victim taken the pictures of this case had taken the pictures of this case, they had taken the pictures of this case by specifying the victim as the body of body of body of body of body of body of body of body of body of body of body of their body of body of body of body of body of body of body of body of body of body of body of their body of body of body of body of body of body of body of body of their body of body of body of body of body of body of body of their body of body of body of body of body of body of body of body of body of body of body of their body of body of body of body of body of body of body of body of their body of body of body of body of body of body of body of body of body of body of body of the body of body of body of body of body of body of body of body of body of body of body of body

(6) Although the body part taken in the instant pictures did not take the body part exposed to the victim, the body part taken was not taken by the victim, but taken by the telegraph, the body part taken by the victim was exposed to the body part out of the body part taken by the victim so far as the length of half the body part taken by the victim is shorter than that of the victim, or more than that of the victim in walking. The part of women’s buckbuckbucks is close to the location part of the body part, and can be emphasized as a sexual symbol depending on the place and circumstances. At the time of the instant case, it is reasonable to view the victim as holding the body part above the buckbucks, and as the body part in front is expected to have the upper part of the two parts of the body part above in the buckbuck, it is reasonable to see that the victim and the victim were exposed to the body part above the body part above the body part above the buckbucks, and thus, it is hard to see that the victim and the victim were exposed to the entire location of the body.

B. Unreasonable sentencing

If there is no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect this (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

It is a first crime, there is no record of the same crime, the body of the victim taken by the defendant is the telegraph of the victim who takes a usual attitude, and the degree of exposure to the victim's body is not particularly imposed so as to cause high level of sexual humiliation or shame. Among them, the physical parts of the victim's body is a buckbuck bridge, which corresponds to the physical parts of the victim's body that women are exposed in their daily lives according to season or circumstances, the victim is one, the number of takings is also one time, and the defendant seems to have been able to block the crime of this case by contingency.

However, it is doubtful whether the Defendant’s photograph of this case is repented and against the truth, such as arguing that it is not a photograph that may cause a sense of sexual shame of the victim, etc. The victim’s photograph taken by the Defendant was deleted from his cell phone, but up to 130 persons were posted on his cell phone, so it cannot be ruled out that the above photograph may be distributed to many and unspecified persons, the victim did not agree with the victim, and the victim did not want punishment against the Defendant.

The above circumstances and the circumstances alleged by the Defendant in the trial are deemed to have already been considered in the sentencing process of the lower court, and there is no change in the sentencing conditions that would otherwise determine the punishment in the trial. In full view of the Defendant’s age, occupation, character and conduct, environment, criminal records, motive, means, consequence, and circumstances after the crime, the lower court’s punishment is too heavy beyond the reasonable scope of discretion. This part of the Defendant’s assertion is rejected.

3. Conclusion

Since there is no reason to appeal by the defendant, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act (ex officio in accordance with Article 25(1) of the Regulations on Criminal Procedure, the pertinent provision on the crime of 1.0 shall be applied in the column of application of the Act and subordinate statutes. The part of the judgment of the court below as "Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the point of taking pictures, such as cameras, and distributing and providing photographs)", and the part of "1.1.0 choice of punishment" shall be added to "Article 37(1)2 and Article 50 of the Criminal Act from among concurrent crimes of 1.1."

Judges Seo Don (Presiding Judge) Lee Jae-chul and Massung

Note 1) Even if the instant drinking house is not a driving day, it may sit together with a large number of tables while waiting in the atmosphere, and the said female three is a third party, not a driving day of the Defendant or the victim.