The defendant's appeal is dismissed.

1. The summary of the grounds for appeal (misunderstanding of legal principles and improper sentencing) taken photographs of another person’s body part that can normally be seen by the subway, which is a place in which the defendant is open to the public. Thus, it cannot be deemed that the body of another person, who may cause sexual humiliation or shame, has been taken from the standpoint of an average person.

The punishment sentenced by the court below is too heavy.

2. Determination

A. Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, Etc. of Sexual Crimes, which punishs an act of photographing another person’s body against his/her will, using a camera or other devices with similar functions as to the assertion of misunderstanding of the legal doctrine, is to protect the victim of character chain’s sexual freedom and freedom not taken without permission.

Whether the body of another person, which may cause sexual humiliation or shame, constitutes “the body of another person,” or not should be objectively determined by taking into account whether the general meeting of the victim’s sex and age group falls under the body that may cause sexual humiliation or shame from the perspective of the average person, as well as the degree of exposure, etc. of the victim concerned, taking into account not only the victim’s intent and the background leading up to photographing, the place and location of photographing, the degree of photographing and the distance of photographing, the image of the taken original body, and whether or not the photograph of the taken original body has emerged (see, e.g., Supreme Court Decision 2008Do707, Sept. 25, 2008). According to the foregoing legal principles, according to evidence duly adopted and investigated by the court below (such as video-caping, etc.), the victim’s body of photographing and the photographing body of the woman, etc., which was short by the defendant, can be seen as being close to the photographing body and the photographing body.