2015Do16953 Forgery of private documents, promotion of use of information and communications networks, and information protection, etc.

violation of law, the uttering of an investigating document, the attempted attempted fraud, and the attempted fraud;

Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Act on Promotion of Utilization of Information and Communications Network and Information Protection, etc.

Violation of rate (Defamation), Property Damage and Damage

A

Defendant

Attorney P (National Ship)

Law Firm N

Attorney Lee In-bok

Daegu District Court Decision 2015No2670 Decided October 16, 2015

December 24, 2015

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

1. Determination on the grounds of appeal on attempted conflicts and violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (Defamation)

According to the records, the defendant appealed against the judgment of the court of first instance and asserted only unfair sentencing as the grounds for appeal. In such a case, there is an error of law by mistake of facts or misapprehension of legal principles in the judgment of the court of first instance.

2. Ex officio determination on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

A. Of the facts charged in the instant case, the summary of the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amerasation and photographing of Cameras) is that “the Defendant was guilty by applying Article 14(2) and Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) to the aforementioned facts charged, while the Defendant was in custody of Bmeras photographs taken by using a mobile phone camera from the mobile phone to the Defendant’s mobile phone from November 12, 2013, which were sent from C with the Defendant’s mobile phone to the Defendant’s mobile phone, the Defendant designated the above Bmeras photograph by using the Defendant’s photo against C’s will against his/her will, and then displayed C’s photo in a way of writing comments on C’s c’s can cause sexual humiliation or shame,” and the lower court convicted him/her of the aforementioned charges by applying Article 14(2) and (1) of the Act on the

B. However, we cannot agree with the above determination by the court below for the following reasons.

(1) The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, the interpretation of penal provisions shall be strict, and an excessively expanded interpretation or analogical interpretation of the meaning of the express penal provisions in the direction unfavorable to the defendant is not permitted as it is contrary to the principle of no punishment without the law (see, e.g., Supreme Court Decision 2012Do4230, Nov. 28,

(2) Article 14(2) of the Sexual Violence Punishment Act provides, “The distribution, sale, and lease of a photographer against his/her will even if it does not go against the will of the person to be taken at the time the photographer is taken.”

A person who exhibits, provides, or openly displays, or shows the photographed objects openly shall be punished by imprisonment with prison labor for not more than three years, or by a fine not exceeding five million won. Article 14(1) of the same Act provides, “A person who photographs another person’s body, which may cause sexual humiliation or sense of shame, using a camera or other similar mechanism, against his/her will, or who distributes, sells, leases, provides, or openly displays or displays such objects so taken, shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won.”

According to the above provisions, it is apparent in the language that the photographer under Article 14(2) of the Sexual Violence Punishment Act refers to the photographer who takes the body of the person as a person to take the photographer, and therefore, it is deemed that it is beyond the ordinary meaning of the language to include the photographer who takes the body of the person by himself in the photographer is included in the photographer under the above provision.

(3) According to the records, C took a photograph of his body using a cell phone camera on October 2013, and transmitted the photographic file to his mobile phone. The Defendant designated the above body photographic photo sent by C around November 12, 2013 as the Defendant’s character photograph, and then written comments on C’s c’s c’s c’s c’s c’s c’s c’s c’s c’s b’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s c’s body

C. Nevertheless, the court below found the above B body photographs guilty of this part of the charges on the premise that they fall under the filmings of Article 14(2) and Article 14(1) of the Sexual Violence Punishment Act. This is erroneous by misapprehending the legal principles on Article 14(2) and (1) of the Sexual Violence Punishment Act.

3. Conclusion

Therefore, the part of the judgment of the court below on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amerasation and photographing) shall be reversed, and the above crime and the remaining crimes shall be concurrent crimes under the former part of Article 37 of the

The judgment of the court below is reversed in its entirety, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.

Justices Lee Sang-hoon

Justices Cho Jong-hee

Chief Justice Park Sang-ok