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The judgment below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. Of the facts charged in the instant case, the summary of the Defendant’s violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (such as a camera, etc.) was provided to the wife of the victim by using a mobile phone text message in the name of three copies of the victim, on which the Defendant was informed of the victim’s sexual organ or of the face of his/her hand, etc., from among the video files taken under the agreement with the victim when the Defendant was sexually related to the victim, and then sent the victim’s cell phone using a cell phone text message in the name of three copies. However, at the time of filming, the “the photograph taken of the victim’s body” was provided to the wife
2. Based on its stated reasoning, the lower court affirmed the first instance judgment convicting the Defendant of the aforementioned facts charged on the ground that the Defendant’s act of taking pictures of sexually related video files taken by reproducing them in a computer with the victim’s cell phone and then sending such pictures to the cell phone of the victim’s wife constitutes “an act of providing other person’s body photographs against the victim’s will” under Article 14(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”).
3. However, it is difficult to accept the above determination by the lower court for the following reasons.
(1) Article 14(1) of the Punishment of Sexual Violence Act provides that “A person who takes photographs of another person’s body, which may cause sexual humiliation or shame against his/her will, by using a camera or other similar mechanism, or who distributes, sells, leases, provides, or openly displays or displays the photographs so taken, shall be punished by imprisonment for not more than five years or by a fine not exceeding ten million won.
“......”
Since the above provision stipulates the subject of photographing as "other person's body," the body of the other person itself.