Defendant

Defendant

Admonishment, lectures, or silents;

Attorney Cho Young-young

Seoul Central District Court Decision 2016 Height5614 Decided November 18, 2016

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

(a) misunderstanding of facts or misunderstanding of legal principles (limited to violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes)

Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) provides that “the case in which another person’s body is taken against his/her will” shall be limited to the case in which “the body itself of the other person is taken” (Article 2013Do4279). In light of the Supreme Court precedents (Article 14(1) and Article 14(2) of the Sexual Violence Punishment Act, the term “explosives” shall also be construed to be limited to the case in which the body of the other person is taken directly. The meaning of “the case in which another person’s body is taken” and “explosives of another person’s body,” and the meaning of “explosives of another person’s body is different from the meaning of “explosives of another person’s body,” and thus, it shall not be permissible in principle

The photograph transmitted by the Defendant does not constitute a “cinematographic” within the meaning of Article 14(2) of the Sexual Violence Punishment Act, inasmuch as the photograph taken by the Defendant and the victim after reproducing the screen image from the computer, which is a photograph taken by the monitor screen. The act of the Defendant cannot be punished for the violation of Article 14(2) of the Sexual Violence Punishment Act.

B. Unreasonable sentencing

The sentence of the court below is heavy.

2. Determination

A. misunderstanding of facts or misapprehension of legal principles

1) Relevant legal principles

Article 14-2 of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (amended by Act No. 8059 of Oct. 27, 2006) provides that only the act of photographing another person's body, which may cause sexual humiliation or shame against the latter's will, shall be punished under Article 14-2 (1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (amended by Act No. 8059 of Oct. 27, 2006), shall be punished under the same statutory punishment as the person who distributes, sells, leases, openly exhibits, or shows, photographs taken against the latter's body against the latter's will (the above provision was enacted by the Sexual Violence Punishment Act by Act No. 10258 of Apr. 15, 2010). The latter provision was incorporated into Article 13 (1) of the same Act, and the latter body was taken under Article 14-2 (1) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof.

Considering such legislative intent, it is reasonable to interpret that “the act of distributing, selling, leasing, or openly displaying or screening photographs” includes not only the act of directly distributing or distributing the photographs themselves, but also the case of distributing, selling, or displaying them after reproducing or storing them into other media while maintaining the identity of the photographs. If the recording pictures of another person’s body are interpreted narrowly as a penal provision punishing the case of distributing, selling, or displaying them as alleged by the Defendant, it would be possible to avoid punishment through easy means to change the storage media, thereby achieving the legislative purpose.

On the other hand, Article 14(2) of the Sexual Violence Punishment Act provides that “a person who distributes, sells, leases, provides, or openly displays or shows photographs against his/her will even if the photographing of another person’s body does not go against the will of the person subject to photographing at the time of photographing,” which is subject to the prohibition of distributing, selling, leasing, providing, or openly displaying or showing in the latter part of Article 14(1) of the same Act, “the photographing of another person’s body against his/her will” that is not included in the scope of the punishment, is to additionally punish “the photographing of another person’s body at the time of photographing, which was not included in the scope of the punishment,” and “the photographing” should also be interpreted as the same meaning as the photographing of Article 14(1) of the same Act.

2) Determination on the instant case

The Defendant’s act of taking the image of a sexually related dynamic image taken by the Defendant under the agreement with the victim back from a computer to a cell phone camera of the Defendant, and then transmitting it to the Defendant’s wife constitutes an act of providing the victim’s wife a photograph taken of another person’s body against his will” under Article 14(2) of the Sexual Violence Punishment Act. The Defendant’s assertion does not accept.

B. The assertion of unfair sentencing

Defendant is a primary offender who has no particular criminal history. However, each of the crimes in this case appears to have caused serious mental harm to the victim and his wife, and has not been agreed with or has not been expressed from the victim until now. In addition, when examining the conditions of sentencing indicated in the record, such sentencing is not deemed unfair.

3. Conclusion

The defendant's appeal is dismissed.

Judges Kim So-young (Presiding Judge)