2017 High Court 569 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use of Cameras, etc.)

(Attempted taking of photographs)

A

The next platform (prosecution), the second class (prosecution), and the second class (trial)

Attorney Park Han-young

August 22, 2018

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

The defendant shall order the completion of a sexual assault treatment program for 24 hours.

The provisional payment of the amount equivalent to the above fine shall be ordered.

Seized evidence subparagraph 1 shall be forfeited from the accused.

Criminal History Office

On May 10, 2017, at around 20:30, the Defendant confirmed that the victim D (years 21) and the victim E (years 22) were off from the window outside of the guest room of Pyeongtaek-si Bel C, and was sexually related, and attempted to take a photograph by using the camera installed inside the mobile phone camera of the Defendant, but failed to operate the camera.

Summary of Evidence

1. Statements made in D and E in the third trial records;

1. A report on internal investigation:

1. On-site photographs;

(The defendant and his defense counsel tried to photograph the guest rooms of this case using a camera located in a mobile phone by the defendant, but the mobile phone operation is blurging so that the victims could be aware of the defendant's face, and the victim's actions to take photographs were suspended due to the artificial shock, so they did not reach the commencement of the crime of taking photographs, such as a camera, etc.

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is reasonable to view that the defendant had started to commit a crime in which the video information on the body of the victims can be input into the camera, even without any specific act that focuses on the separate focus. Therefore, the defendant and the defense counsel's assertion is not acceptable.

① At the time of the victims’ entry into the instant telecom, the Defendant was aware of the victims’ sexual intercourse at the instant guest room, and the victims directly observed the face of sexual intercourse through the heatd windows of the instant guest room.

② On the day of the instant case, the Defendant observed the scene where the victims have sexual intercourse through the windows of the guest room in this case.

③ Considering the fact that the victims have seen the commencement and suspension of video shooting of mobile phones near the windows of the instant case on the day of the instant case, and the Defendant also recognized that the Defendant was operating a mobile phone camera to take the guest rooms of the instant case, the Defendant appears to be seen to be close to the windows after performing the mobile phone image photographing function to facilitate the body of the victims.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 15 and 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Selection of fines

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Registration and submission of personal information

Where a conviction on a crime subject to registration is finalized, the defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent agency pursuant to Article 43 (1) of the same Act.

Disclosure Order and Notice Order, Exemption from Employment Restriction Order

Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1), the proviso to Article 50(1), and the proviso to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse shall not issue an order to disclose or notify the accused, or an order to restrict employment, comprehensively taking into account the Defendant’s age, occupation, family environment, social relationship, risk of recidivism, previous crimes and recidivism, benefits expected by an order to disclose or notify, and adverse effects therefrom, etc.

Judge Lee Jin-hun