The protected and protected legal interests of Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and the standard for determining whether the recorded parts constitute “any other person’s body that may cause sexual humiliation or shame” as provided for in the said Article.

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

[Plaintiff-Appellant] 2008Do7007 decided September 25, 2008 (Gong2008Ha, 1516)

Defendant

Defendant

Seoul Northern District Court Decision 2014No77 decided May 1, 2014

The appeal is dismissed.

The grounds of appeal are examined.

Article 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, etc. of Sexual Crimes, which punishs 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, by using a camera or other similar mechanism. Thus, whether the recorded body constitutes "the body of another person, which may cause sexual humiliation or shame" objectively, shall be determined by taking into account whether the body falls under "the body of another person, which may cause sexual humiliation or shame" of the victim's sex like the victim, age group's general and average person, as well as the degree of exposure, as well as the circumstances leading up to the photographer's intent, place and distance of photographing, image of the taken body, and whether the given body part has emerged (see Supreme Court Decision 2007Do778, Sept. 25, 2008).

According to the reasoning of the judgment below, it is reasonable to judge the defendant guilty of the charge of this case on the ground that the victim's bridge part is "the body of another person, which may cause a sense of mind" in full view of the following facts: (a) the defendant taken a female image using a conventional image in a toilet; (b) the victim's knee and the knee part under the front knenee immediately after viewing the knee; and (c) the victims stated that they suffered a considerable sense of sexual humiliation due to the defendant's behavior at an investigative agency; and (d) other factors such as the place of the shooting in this case, the knee and the knee and the kne of the taken log, etc. of the victim taken by the defendant.

Examining the aforementioned legal principles and the evidence duly adopted and examined by the first instance court, the lower court’s determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine on “the body of another person, who may cause sexual humiliation or shame” under Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules.

Supreme Court Decision 2007Do7938 Decided January 17, 2008 cited in the ground of appeal is different from this case and it is not appropriate to invoke this case.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)