(영문) 부산지방법원 2015.9.11.선고 2015노1466 판결

The court below found the defendant guilty of the facts charged of this case. However, in light of the fact that the exercise of tangible force against the victim was merely an act to the extent that the victim was able to wear a bags, and did not directly contact with the victim, and that the personal information of the participants in assemblies including the defendant cannot be prevented from spreading damage due to the disclosure of the victim's personal information when the video recorded by the victim was distributed once, the defendant's act of this case constitutes an act which is reasonable under the generally accepted social norms or a case where it is impossible or considerably difficult to preserve the right to claim through a legal procedure, and thus, it cannot be viewed as unlawful. Accordingly, the court below found the defendant guilty of the facts charged of this case, which erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion

B. Unreasonable sentencing

Even if it is not a domestic work, the punishment of the original judgment (the fine of KRW 500,00) is too unreasonable.

2. Determination

A. Summary of the facts charged in this case

On August 16, 2014, at around 20:0, the Defendant: (a) taken a head of the assembly in front of the Seocho-dong Military Security Center in Busan Metropolitan City, the victim C (30 years of age) taken the front of the Seocho-dong Military Security Center; (b) sought to delete anti-defication and make a request for deletion of anti-defication and video, and (c) committed assault, such as attaching a line to which the victim is the main body of the victim moving.

B. The judgment of the court below

The court below found the defendant guilty of the above facts charged by comprehensively taking account of the adopted evidence. The judgment of the court below is the judgment.

1) “Act which does not contravene social norms” under Article 20 of the Criminal Act refers to an act which is acceptable in light of the overall spirit of legal order or the social ethics or social norms surrounding the act. Thus, if a certain act satisfies the requirements such as legitimacy of the motive or purpose of the act, reasonableness of the means or method of the act, balance between the protected interest and the infringed interest, urgency, and supplement of the said act without any other means or method other than the said act, it shall be deemed a justifiable act.

(See Supreme Court Decision 2004Do8530 Decided February 2, 2005, etc.)

2) Examining the instant case in light of the foregoing legal doctrine, the following circumstances are acknowledged according to the evidence duly admitted and examined by the lower court and the lower court.

① Any person has a right not to have his/her face and other physical characteristics recognizable as a specific person by social norms taken, taken, taken, or disclosed without permission, and used for profit. Such portrait rights are constitutional rights guaranteed by the first sentence of Article 10 of the Constitution of the Republic of Korea, and unfair infringement of portrait rights and privacy and freedom of privacy constitutes tort. Such infringement is not justified solely on the ground that it was made at a public place or it was made for the purpose of collecting evidence for civil procedure (see Supreme Court Decision 2004Da16280, Oct. 13, 2006). The victim taken, without permission from the participants of the assembly such as the defendant, etc., who had reported the assembly lawfully at the time and is engaged in the assembly at a distance of one to two meters from their face, without permission from the participants of the assembly.

② At the time of the instant case, the Defendant, along with approximately 50 victims due to a non- religion, including D and D witnesses of the lower trial at the Busan Station, made an assembly to inform citizens of the risk of a non-political organization. The Defendant, etc. requested the victim to delete the images of the face taken by the victim if the images containing physical information of the participants in the assembly taken by the victim were transmitted to a non- religious organization, and thus, the victim could be subject to retaliation from these organizations. However, the victim did not comply with the request. The Defendant, etc. demanded the victim to delete the images taken by the victim with the help of the police officer in the vicinity, but the victim rejected the request.

③ In the end, the Defendant, etc. and the victim agreed with the police officer to the Track Security Center, but the victim refused the request of the Defendant, etc. at that place. Accordingly, the Defendant did not exercise any other physical force against the body of the victim, even though the victim did not go to the Track Security Center and exercised physical force, such as attaching a line in which the victim would go to go to the Traca, and exercising any other physical force on the body of the victim.

(A) The Defendant’s act of this case caused damage to the victim, but the victim’s face, etc. taken by the participants in the assembly, including the Defendant, would not prevent the spread of the damage in the event of transmission or distribution of a group against the intent of the parties. It seems that the degree of damage suffered by the Defendant, etc. is greater.

⑤ Moreover, the Defendant was unable to know the victim’s personal information, and there was no method of forced identification unless the victim speaks by himself, and thus, the Defendant did not have any way to take different measures against the victim who tried to get out of the place without deleting the photographic image. In addition, it seems that there was no way to inevitably put a bank line containing a camera, and that there was no need to request the deletion of the photographic image.

3) In light of the above circumstances, since the act of this case satisfies the requirements such as the legitimacy of the motive or purpose, the reasonableness of the means or method of the act, the balance between the protected interest and the benefit of infringement, urgency, and supplement, etc., the act of this case is reasonable to the extent permitted by social norms. Thus, in a case where it constitutes a justifiable act under Article 20 of the Criminal Act or where it is impossible or considerably difficult to preserve a claim through a legal procedure, it cannot be deemed that the act of this case constitutes a self-help act under Article 23 of the Criminal Act, and thus, is unlawful. Accordingly, the Defendant’s assertion of mistake of facts

3. Conclusion

Thus, since the defendant's appeal is well-grounded, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and it is again decided as follows.

【Discretionary Judgment】

The summary of the facts charged in this case is as stated in Article 2-A(a) and Article 2-3(c) of the Criminal Procedure Act, since it constitutes a case that does not constitute a crime, it is so decided as per Disposition by the assent of all participating Justices on the bench under the former part of Article 325 of the Criminal Procedure Act and the summary of the judgment under Article 58(2)

Judges

The assistant judge of the presiding judge;

Judges Kim Tae-jin

Judges Cho Jin-jin

Note tin

1) According to the statement of E by the witness E at the trial of the political party, E has continuously been subject to intimidation from a non- religious organization, and the Defendant is the participants in the assembly.

The case was well known.

심급 사건

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