All appeals by the defendant and the prosecutor are dismissed.
1. Summary of grounds for appeal;
A. (1) The bodily parts of the victim E taken by the defendant by mistake or misunderstanding of facts were not physical parts that may cause sexual humiliation or shame, but did not have an intention to cause sexual humiliation or shame at the time when the defendant taken these parts.
(2) The act of the defendant taking pictures of the body of the victim and distributing them to the group hosting room constitutes a justifiable act that aims to correct the neglect of duty of the victim.
B. The Prosecutor’s sentence (5 million won in penalty, and 40 hours in completion of a sexual assault treatment program) of the lower court is too unhutiled and unreasonable.
2. Judgment on the defendant's assertion
A. (1) The purpose of Article 14(1) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof is to punish the act of photographing another person’s body, which may cause sexual humiliation or shame against the latter’s will, by using a camera or other devices with similar functions, to protect the victim’s sexual freedom and freedom not to be taken without permission.
Therefore, whether the recorded body of another person may cause sexual humiliation or shame should be objectively determined by taking into account whether the general body of the victim, such as the victim’s sex and age group falls under the body that may cause sexual humiliation or shame from the perspective of an average person, as well as the degree of clothes, pictures, exposure, etc. of the victim in question, as well as the circumstances leading up to the photographer’s intent, place and location of photographing, degree of filming and distance of photographing, image of the taken body, etc. (see, e.g., Supreme Court Decision 2008Do707, Sept. 25, 2008).