Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use of Cameras) 1

A

Defendant

Kim Jong-ju (Lawsuit) and Kim Young-sik (Trial)

Attorney J (Court-Appointed)

Busan District Court Decision 2017Da3268 Decided September 13, 2017

April 20, 2018

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Although the Defendant did not commence the commission of the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter referred to as "the crime of taking pictures using carmeras, etc."), the lower court erred by misapprehending the facts charged in this case or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

The punishment of the court below (the fine of 5 million won, the sexual assault treatment program for 40 hours, the confiscation) is too unreasonable.

2. Summary of the facts charged

Around 02:00 on August 11, 2016, the Defendant listened to the Plaintiff’s 2nd floor in front of the building in Ulsan-gu C, Ulsan-gu, and confirmed that the Defendant OO (n, 21 years old) was out of clothes from the toilets No. 201 and was in a bath, then the Defendant sought to take photographs using the Defendant’s cell phone located outside the above toilets, with the Defendant’s cell phone located outside the said toilets, but attempted to take such pictures.

3. Determination

Although the lower court found the Defendant guilty of the facts charged of this case, the lower court’s determination is not acceptable for the following reasons.

Article 13(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is a crime established by photographing another person's body, which may cause sexual humiliation or other shame against the latter's will, using a camera, etc. In this context, the term "recording" means the act of inputting video information into a film or storage device contained in a camera or any other device equipped with similar functions (see, e.g., Supreme Court Decision 2010Do10677, Jun. 9, 201). Meanwhile, in order to punish a person who attempted the crime as an attempted crime, it should be recognized that the crime was commenced. To find that there was commencement of the crime, specific and direct acts should be commenced to input video information into the latter's body, such as a camera, focusing on the body body of the latter through the siren, etc. equipment equipment such as a camera, and no act of using a camera or camera, etc. can be found to have commenced with 1010Do1215, Jan. 14, 201.

In this case, according to the evidence duly examined and adopted by the court below, the defendant tried to cancel the locking function of the Handphone in order to photograph the inside of the second floor toilet with the gas pipeline of the above building's outer wall, but the defendant gave up shooting to the victim's non-defluence. In light of the aforementioned legal principles, in light of the above facts of recognition, the above act of the defendant is merely a preparatory act for taking photographs before the commencement of specific and direct actions to input video information into the device such as mobile phone camera, and it is merely a preparatory act for taking photographs, and there is no other evidence to prove that there was a commencement of implementation.

The defendant's assertion of misunderstanding of facts and misapprehension of legal principles is with merit.

4. Conclusion

Since the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is well-grounded, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the defendant's argument of unfair sentencing, and

【Time-off Judgment】

1. Facts charged;

The facts charged of this case are as indicated in paragraph (2) above.

2. Determination

The facts charged in this case constitute a case where there is no proof of crime for the same reason as stated in the above Paragraph 3, and thus, the acquittal is rendered pursuant to the latter part of Article 325

Judge of the presiding judge, police officer;

Judges Lee Jae-chul

Judges Go Sung-sung

1) The indictment states that the name of the crime is "an attempted crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amera, etc.)", but according to the established rules on the name of the crime to be stated in the indictment and the non-prosecution book, if Article 15 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes is applied, the indictment does not indicate "an attempted crime after the name of the relevant crime." Thus, it seems that