(영문) 수원지방법원 2018.8.14. 선고 2018노342 판결

The part of the judgment of the court below regarding the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against Victims F shall be reversed.

Defendant shall be punished by a fine of KRW 10 million.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 100,000 won into one day.

To order the defendant to complete the sexual assault treatment program for 40 hours.

The defendant shall be ordered to a child or juvenile-related institution, etc. to restrict employment (including the prohibition of operating and providing actual labor) for one year.

Samsung Tallons 6 (No. 1) shall be confiscated.

In order to order the provisional payment of an amount equivalent to the above fine.

Of the judgment below, the prosecutor's appeal against the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the use and photographing of cameras, etc.) shall be dismissed.

Reasons

1. Summary of grounds for appeal;

According to the evidence submitted by the prosecutor, although the defendant could be found to have taken photographs of the victims' satisfies as of the time stated in the facts charged, the court below found the defendant not guilty by misunderstanding

2. Summary of the facts charged

A. On July 28, 2017, around 21:50, the Defendant, within the subway E Station located in Young-gu, Suwon-si, Suwon-si, and took a photograph of the victim’s spawn by immediately affixing the victim’s non-merchants on his/her name, who is on board an escalator in his/her upper direction by suffering spath, using the video function of mobile phones.

B. The Defendant, at the time, at the time, and at the place under the above Paragraph 1, taken the fat of the victim F (V, 35 years of age), who was on board an escalator in the upper direction by suffering the fata in line under the above Paragraph 1, and taken the fat of the victim by using the video function of the cellular phone.

Accordingly, the Defendant taken the body of the victims who could cause sexual humiliation or shame over a total of twice as seen above against their will.

3. The judgment of the court below

The lower court found the Defendant guilty of the instant facts charged on the ground that it appears that at the time indicated in the facts charged A. (a) the Defendant used the cell phone to the lower end of the victim’s right, and that the Defendant used the cell phone while operating the display function or lighting function immediately attached to the victim even at the time indicated in the facts charged. However, there is insufficient evidence to acknowledge that the Defendant taken the physical part of the victims who could cause sexual humiliation or shame using a camera app at each point indicated in the facts charged.

4. Judgment of the court below

(a) The point of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras, Use of and photographing of Cameras);

Article 13(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is an offense established by photographing another person’s body, which may cause sexual humiliation or any other shame, using a camera, etc., against the latter’s will. Here, “recording” refers to the act of inputting the image information on the victim into a film or storage device contained in a camera or any other device equipped with similar functions (see Supreme Court Decision 2010510677, Jun. 9, 201). As such, the subject of filming is specified and focuses on the victim’s body through the siren, etc., if specific and direct act is commenced, its implementation begins (see Supreme Court Decision 2011Do12415, Nov. 10, 201). However, such act should not be simply an act of inputting the victim’s body or a storage device that may cause a sense of shame to another person’s body or body.

Comprehensively taking account of the following circumstances acknowledged by the record, it is insufficient to recognize that the evidence submitted by the prosecutor alone has commenced specific and direct acts for the taking of the victim’s body that may cause sexual humiliation or shame.

① According to CCTV images in the E basin, the Defendant appears to have spent the cell phone next to the victim who was frightened from escalators, and the Defendant was not found to have taken the cell phone next to the lower. However, the photograph or video taken at the time was not found.

② In the absence of the victim’s statement, the CCTV images alone cannot be deemed as bringing the Defendant to the lower part of the victim’s cell phones specifically or focusing on the camera in that part.

Therefore, this part of the prosecutor's argument is without merit.

(b) Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against Victims F;

Comprehensively taking account of the following circumstances acknowledged by the court below and the evidence duly adopted and examined by the court below, it is not sufficient to recognize that the defendant taken physical parts that may cause sexual humiliation or shame of the victim, only the evidence submitted by the prosecutor, but it can be recognized that the defendant commenced a specific and direct act to photograph the victim's body that may cause sexual humiliation or shame.

① Around the time indicated in this part of the facts charged, the Defendant operated the app with a mobile phone, but the Defendant did not find any photograph or motion picture taken by the victim.

② 피해자는 당심 법정에서 '당시 무릎에서 한 뼘 정도 올라간 플레어 스커트를 입고 있었는데, 왼쪽 허벅지 쪽에 뭔가 닿는 느낌이 들어서 봤더니 불빛이 보였다. 카메라 플래시가 켜져 있었고, 휴대폰 뒷면이 위로 향한 상태에서 제 허벅지에 닿아 있었다. 제가 얼굴을 쳐다봤더니 남자가 바로 도망갔다.'고 진술하였다.

③ The CCTV in the E basin contains a cell phone after the victim’s back from the escalator. The victim returned to the Defendant, and then the Defendant runs away from the escalator.

④ The Defendant, who cited the back of a mobile phone on the upper side of the mobile phone, was rarely able to observe the part of the victim by using the voice function, etc., instead of taking photographs.

Therefore, this part of the facts charged with the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter referred to as the "Act on the Punishment, etc. of Sexual Crimes") is a case where there is no proof of a crime, and there is no reason to assert this part of the facts charged by the prosecutor, and this part of the facts charged contains the criminal facts committed in violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. Therefore, the court below which acquitted the defendant on the ground that there is no proof of a crime. In light of the progress of the trial, there is an error of law by mistake of facts affecting the conclusion of the judgment, and in recognition of attempted crimes in violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the use of a camera, etc.), which is

5. Conclusion

Of the judgment of the court below, the prosecutor's appeal against the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against Victims of Name, is groundless. Thus, the prosecutor's appeal against the victim F is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act and the prosecutor's appeal against the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against Victims of Name, etc. is partially reasonable. Thus, pursuant to Article 364 (6) of the Criminal Procedure Act, the part of the judgment of the court below on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against Victims of Name, etc.

[Grounds for multi-use Judgment]

Criminal facts

At around 21:50 on July 28, 2017, the Defendant, within subway E station located in Young-gu, Suwon-si, Suwon-si, sought to take a photograph of the victim’s body fat, using the video function of cell phones, attached immediately after the victim F (n, 35 years of age) who was aboard an escalator in the top-down direction by suffering fright, but failed to take a photograph.

Accordingly, the defendant tried to take the body of the victim who could cause sexual humiliation or shame against his will and attempted to take the victim's body against his will.

Summary of Evidence

1. The F's oral statement in court;

1. On-site photographs and closure screens of the offender;

1. Investigation report (with respect to the same manner as the suspect's appearance); and

1. A report on the analysis of digital evidence;

1. Storage dys, such as photographs and video materials;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 15 and 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Selection of Fines)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order to complete programs;

Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse ( January 16, 2018), Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

Considering that the defendant had three criminal records for the same kind of crime and, in particular, he/she has committed the crime of this case without being aware of the fact that the defendant was under the suspension of execution due to the same crime, there is a need to punish the defendant. However, considering the fact that the crime of this case was committed in the attempted crime, the defendant's age, environment, character and conduct, motive and means of the crime, circumstances after the crime, etc., all the sentencing factors indicated in the records of this case shall be determined

Registration and submission of personal information;

A judgment of conviction on a sex offense subject to registration becomes final and conclusive, and the defendant is a person subject to registration of personal information under Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the relevant agency pursuant to Article

An order to disclose or notify personal information;

In light of the Defendant’s age, occupation, risk of repeating a crime, motive, method, consequence, seriousness of the crime, disclosure order or notification order, the degree and expected side effects of the Defendant’s disadvantage, the prevention of sexual crimes subject to registration that may be achieved therefrom, and the effect of protecting the victims, etc., the Defendant shall not be ordered to disclose or notify his/her personal information pursuant to Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, given that there are special circumstances where disclosure or notification of his/her personal information

Parts of innocence

The summary of this part of the facts charged is as stated in Article 2-2(b) and Article 4-2(b) of the Criminal Procedure Act, since there is no proof of facts constituting a crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the defendant is found guilty of a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras, Use and Screening of Cameras, etc.)