2019 Highest 372 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use of Cameras, etc.)

(Recording)

A

Stick-type cases (prosecutions) and on the bareboats (public trials)

Attorney Ha Hun-hwan

October 17, 2019

The defendant shall be innocent.

1. Summary of the facts charged

On January 24, 2019, when the Defendant entered and opened a toilet for public use, the Defendant was trying to capture the Defendant’s cell phone by inserting the Defendant’s cell phone into a string space where the victim D (name, leisure, age 45) reported the melting side of the building C located on January 24, 2019, and the victim was discovered out of the victim, thereby walking the Defendant’s cell phone by walking the Defendant’s cell phone.

Accordingly, the defendant tried to take another person's body, which could cause sexual humiliation or shame by using a mobile phone camera, against his will, and attempted to take a photograph of another person's body.

2. Determination

A. Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is a crime committed by photographing another person's body against another person's will which may cause sexual humiliation or any other sense of shame by using a camera, etc. The term "recording" refers to the act of inputting image information on the victim into a film or storage device contained in a camera or any other device equipped with similar functions. The criminal attempt to punish the victim as an attempted crime must be recognized. In order to establish the commencement of the crime, a specific and direct act should be commenced to input image information in a mechanical device such as a camera, such as a specific object of photographing, focusing on the victim's body (see Supreme Court Decision 201Do12415, Nov. 10, 201, etc.).

B. The victim stated to the effect that "the victim entered a toilet to the effect that he had the same picture as a person in the column reported to him at the time he sits at the front, and that the size of the Handphone to see it was above, and that the degree of 1/3 of the Handphone was 1/3 of the Handphone to see it, left the left door, and carried the Handphone, and the mobile phone screen was not opened." According to the result of the mobile phone analysis by the defendant, there was no trace of the execution of the car display case on January 24, 2019 from the mobile phone used by the defendant, nor any photograph or video image taken by the defendant's body within the mobile phone.

In the absence of the defendant's mobile camera function, it cannot be said that there was a commencement of the execution of photographing the use of the camera, on the ground that the defendant was pushed down his mobile phone under the partitions.

The facts charged constitute a case where there is no proof of crime, and thus, a judgment of innocence is rendered under the latter part of Article 325 of the Criminal Procedure Act, and the summary of judgment is not publicly announced under the proviso of Article 58 (2) of the Criminal Act.

Judges Cho Jin-jin