(영문) 서울서부지방법원 2013.2.19. 선고 2012노750 판결

The summary of the facts charged in the instant case is as follows: “Around September 17:35, 201, the Defendant discovered the victim E (the age 22) suffering from the short string of the last bridge before the exit of subway No. 2 located in Mapo-gu Seoul, Seoul, about September 2, 201, 9; the Defendant taken the victim’s bridge, etc., which may cause sexual humiliation or shame against the victim’s will against the victim’s will; and the Defendant taken the victim’s bridge, etc. around the same place from 14:00 to 17:35 of the same day, using the same method, from 68 women’s will, whose name cannot be known, caused sexual humiliation or humiliation against the victim’s will.”

The court below found the defendant not guilty on the ground that the defendant's act constitutes an act of photographing another person's body, which may cause sexual humiliation or shame as regulated by the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, because it is difficult to see that the defendant's act constitutes an act of photographing another person's body, which might cause sexual humiliation or sense of shame as defined by the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, and there is no other evidence to acknowledge this differently.

2. Summary of grounds for appeal;

In light of the fact that most of the pictures taken by the defendant were fuckbucks and knenee of women who suffered a short fbuck, the photographer E also stated that the defendant suffered a sexual humiliation on his/her photograph, and other images and criminal process taken by the defendant, it is reasonable to deem that the pictures taken by the defendant caused sexual humiliation or shame. However, the court below acquitted the defendant of the facts charged in this case on the ground that the defendant's photograph was made public place at the place where the photograph was affixed or some pictures are subject to the telegraph of the photographer. The court below erred by misapprehending the facts, which affected the conclusion of the judgment.

3. Determination

A. Ex officio determination

Before determining the prosecutor's assertion of misunderstanding of facts, the prosecutor applied for changes in the indictment with the contents of the original facts charged as follows. Since this court permitted this, the judgment of the court below is no longer maintained.

【Revised Indictment】

"Around September 2, 201, at least 17:35, the defendant found the victim E (the 22 years old), who was suffering from the short of the last bridge set up before the opening of the subway No. 2 in Mapo-gu Seoul, 9:4:0 on September 2, 201. At around 17:35, the defendant taken the victim's bridge, etc., which could cause sexual humiliation or shame against the victim's will against the victim's will, and the victim's bridge, etc. whose name and name cannot be known through the same method from around 14:00 to 17:35 on the same day, the defendant taken the victim's bridge, etc. (the file name: P109089; P1090209; P10902; P10902; P1098, Oct. 2, 1092; P1098; P10109, Oct. 16, 1992>

However, even if there are such reasons for ex officio destruction, the prosecutor's assertion of misunderstanding of facts is still subject to the judgment of the court, and it will be examined separately below.

B. Determination of the Prosecutor’s grounds for appeal

Article 14-2(1) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof, which punishs acts of photographing another person’s body, which may cause sexual humiliation or shame against the latter’s will, is to protect the victim’s sexual liberty and freedom of not being taken without permission. Whether the body of the taken body constitutes a body of another person who may cause sexual humiliation or shame, objectively, like the victim’s sex, age group’s general and average person, should be considered in light of the degree of exposure, as well as the following factors: (a) whether the body of another person, which may cause sexual humiliation or humiliation, falls under the body of another person; (b) the degree of exposure of the victim in question; (c) the background leading up to the photographer’s intent, location and distance of photographing; (d) the image of the taken body part; and (e) whether the body part of the given body part has been emphasized or not (see, e.g., Supreme Court Decision 2008Do7286, Sept. 25, 2008).

According to the evidence duly admitted and examined by the court below, the following facts are acknowledged: (a) the defendant takes action as if he was on the short flag for the female who suffered the short flag and taken the parts of the body of the female who was Handphones; and (b) the photograph of this case (referring to the 10th photograph as stated in the changed facts charged) mainly covers the female who suffered the short flag.

However, the following circumstances acknowledged by the evidence, i.e., ① all shots put in a short body or body, but they did not reach excessive exposure beyond the ordinary level, ② the Defendant took photographs for telegraphs other than the face of the shots, ② the Defendant did not take the shots by specifying the shots, the attitude leading up to sexual desire or the cases where excessive exposure occurred due to the shots, ③ all shots were taken at public places where the Defendant sent to the public. ④ The Defendant taken the shots in this case’s pictures as seen above, ④ The Defendant did not have to take the parts ordinarily setting out in the front body of a person who is not a special angle or special method, and it was difficult to view that the Defendant did not take the parts of the shots by taking the shots or shots, ⑤ The Defendant did not take the shots of the shots, and ⑤ the Defendant did not want to take the shots of the shots.

In light of the fact that the main hobby of the defendant's main hobby is photographing and was affixed a photograph of the shopping mall model by amateur photographer in the past, as alleged above, it may be reasonable to view that the photographer's photograph acquired through past experience naturally appears as natural. 6 On the other hand, as to the victim's specific E, the body of the defendant's body cannot be seen as inappropriate in light of the above legal principles. However, although the body of the defendant's body cannot be seen as inappropriate in light of the above legal principles, it is difficult to confirm that the above body of the defendant was sexual humiliation beyond the simple comfortable sense at the time (E refused to summon more than three times at the time, and the prosecutor withdrawn the motion of the witness). 7) In light of the above, it is difficult to find that the defendant's body cannot be seen as a sense of sexual humiliation or disclosure of the photographer's clothes expressed by the defendant.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows.

The facts charged of this case are as stated in the above 3-A (amended facts charged). This constitutes a case where there is no proof of a crime as seen in the above 3-B., and it is so decided as per Disposition by the decision of not guilty against the defendant under the latter part of Article 325 of the Criminal Procedure Act.