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All appeals filed by the defendant and prosecutor are dismissed.
Reasons
1. Summary of grounds for appeal;
A. In light of the legislative intent of Article 14(2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the foregoing provision shall also apply to cases where a photographer was provided to the person in question.
Nevertheless, the judgment of the court below which acquitted the victim of this part of the charges on the ground that the above provision cannot be applied to the act of transmitting the victim's balone photo.
B. Defendant 1) misunderstanding of facts does not go against the victim’s will to send the victim’s b body photographs to her husband. Nevertheless, the judgment of the court below convicting this part of the facts charged is erroneous in misunderstanding of facts. 2) The punishment (fine 3,00,000) sentenced by the court below of unreasonable sentencing is too unreasonable.
2. Article 14(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 15977, Dec. 18, 2018; hereinafter “former Sexual Crimes Punishment Act”) provides that “a person who photographs another person’s body against his/her will, or distributes, sells, leases, provides, or openly displays or displays, displays, or shows, the photographs taken by a public prosecutor, using a camera or other similar device with similar functions, shall be punished by imprisonment for not more than five years or by a fine not exceeding 10 million won.”
Since the above provision defines another person's body as "the body of another person", only the act of photographing another person's body itself constitutes "the act of photographing another person's body" as provided in the above provision, and the act of photographing images containing another person's body image does not constitute an act of photographing another person's body.
On the other hand, Article 14 (2) of the former Sexual Violence Punishment Act does not go against the will of the person subject to filming at the time of photographing.