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The defendant shall be innocent.
Reasons
1. On May 5, 2015, at around 17:30 on May 17, 2015, the Defendant taken the body of another person who may cause sexual humiliation or sense of shameing by taking the part of the bus stops near the Down Office located in Seoul, and the part of the victim E (n, buck, 21 years old) using the Defendant’s cell phone camera function, and taking the body of another person who may cause sexual humiliation or sense of shameing against his will.
2. Determination
A. Under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the act of photographing another person's body, which may cause sexual humiliation or shame against the latter's will is to protect the victim's sexual freedom and freedom not to be taken without permission. As such, whether the photographed body constitutes "the body of another person, which may cause sexual humiliation or shame" should be objectively determined by taking into account whether the body falls under "the body of another person, which may cause sexual humiliation or shame" from the perspective of the general and average person of the age group like the victim objectively the same gender and age group as that of the victim, and whether the body constitutes "the body of another person, which is likely to cause sexual humiliation or shame." In addition, the degree of the victim's clothes, screen, degree of exposure, etc., as well as the circumstances leading to the photographer's intent, degree of photographing, degree and distance of photographing, image of the photographed body, etc.
(See Supreme Court Decision 2008Do7007 Decided September 25, 2008 and Supreme Court Decision 2008Do8642 Decided November 27, 2008, etc.) B.
If a photograph is returned to the instant case and submitted as evidence for the said facts charged, the facts charged are stated to the effect that “buckbucks, etc. were taken in front,” and only the part is indicated as if they were taken.
However, the actual photograph is that the part of bucks is revealed, i.e., buckbucks, but it is particular that the body is taken by telegraphs and the entire body of images is turned out.