(영문) 서울동부지방법원 2019.11.29. 선고 2019고단3197 판결

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.

Seized evidence 1 or 2 shall be confiscated.

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

Of the facts charged in the instant case, the charge of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes against Victims B is acquitted.

Reasons

Criminal History Office

피고인은 2019. 7. 30. 21:50 경 서울 강동구 C건물 D호에 있는 피고인의 주거지에서 나와 담배를 피우러 가던 중 아래 층에서 샤워하는 소리가 들리자 피고인의 주거지에 다시 들어가 셀카봉을 갖고 나와 4층 공용 베란다로 간 다음 셀카봉에 피고인의 삼성 갤럭시노트8 휴대폰을 설치하고 휴대폰의 카메라 기능을 켠 후 위 카메라가 달려있는 셀카봉을 아래로 내려 아래층 화장실 창문 쪽으로 가져다 대고 위 화장실에서 나체 상태로 샤워 중인 피해자 E(여, 21세)의 모습을 약 2분간 동영상 촬영하였다.

Accordingly, the defendant taken the body of the victim who could cause sexual humiliation or shame by using a camera, against the victim's will.

Summary of Evidence

1. Defendant's legal statement;

1. Statement to E by the police;

1. Each report (No. 4,9) and investigation report (No. 21).

1. Each protocol of seizure and the list of seizure;

1. Any on-site photographs, CCTV-dong images CDs, and the internal photographs of toilets;

Application of Statutes

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

Article 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Invitation of a workhouse;

Articles 70(1) 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. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Disclosure and Notification Orders

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 (the age, occupation, risk of repeating a crime, motive, method of committing the crime in this case, result, seriousness of the crime, degree of disadvantage and anticipated side effects of the defendant's disadvantage due to an order to disclose or notify the information, the preventive effect of sexual crimes subject to registration that may be achieved therefrom, and the effect of protecting the victims, etc. shall be comprehensively taken into account.

Exemption from Employment Restriction Orders

The proviso of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, the proviso of Article 59-3(1) of the Act on Welfare of Persons with Disabilities (in full view of the age, family environment and social ties of the accused, records of the crime, details and motive of the crime, methods of the crime, results, etc., it is deemed that there are special

Registration of Personal Information

Where a judgment of conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is a person subject to registration of personal information pursuant to 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 competent authority

Reasons for sentencing

In recognition of the crime of this case, the defendant committed the crime of this case, and only agreed with the victim. The victim does not want the punishment against the defendant, the victim's deletion immediately after the defendant taken pictures, and the video does not spread in any other place, etc. It seems that there was no additional damage. The defendant's primary crime without the criminal records, and other various sentencing factors specified in the arguments of this case, including the defendant's age, character and behavior, environment, motive for the crime, and circumstances after the crime, shall be determined as ordered by the order.

The acquittal portion

1. Facts charged;

Around May 2019, the Defendant taken a photograph of the victim’s front telegraph, who was in a balthal state by using the Defendant’s Samsung Galthothro 8 mobile phone camera in the Defendant’s dwelling area located in Gangdong-gu Seoul building C, and taken a photograph of the victim’s sexual balthic body once after the victim took a sexual intercourse with the victim’s female falthic body (here, 28 years of age) at the Defendant’s dwelling area located in Gangdong-gu Seoul building C.

Accordingly, the defendant taken the body of the victim who could cause sexual humiliation or shame by using a camera, against the victim's will.

2. Determination

The finding of guilt in a criminal trial ought to be based on evidence with probative value, which leads a judge to have the conviction that the facts charged are true beyond a reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach such a level of conviction, the determination should be based on the benefit of the defendant even if there is suspicion of guilt (see Supreme Court Decision 2011Do15767, Feb. 13, 2014).

However, according to the records, the defendant was found to have taken the front or part of the victim's sexual intercourse with the victim's body, but the defendant stated to the effect that he had no intention to photograph the victim as soon as possible, or that he had no intention to photograph the victim against the victim's will. ② The victim stated that "the defendant could have prepared to do so soon," but it was too difficult for the defendant to keep the victim's body in front of the victim's cellphone or the victim's sexual intercourse with the investigation agency. The defendant did not want to have his photograph of the victim's body because the defendant had no intention to take the victim's photograph before the victim's body was removed from the investigation agency, and the defendant could not have taken the photograph of the victim's body because the victim's photograph was removed from the victim's photograph to the extent that it was hard to find that the victim's photograph was not the victim's photograph but the victim's photograph was removed from the investigation agency.

3. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, it is so decided as per Disposition by deciding not guilty under the latter part of Article 325 of the Criminal Procedure