2015 Highest 2079 Violation of the Special Act on the Punishment, etc. of Sexual Crimes (Kameras, etc.)

Coloring)

A

Sponsor (prosecutions) and scarcitys (public trials)

Law Firm B

Attorney in charge C, D

April 7, 2016

The defendant shall be innocent.

1. Facts charged;

On July 24, 2015, around 06:35, the Defendant was under influence of alcohol at the entrance of the Seo-gu, Seo-gu, Daegu, and was attempted to discover the victim F (n, 19 years of age), to perform the Defendant’s smartphone image function, and to store smartphones below the victim’s body and to take the part of the victim’s body. However, the Defendant did not have the intention to take the part of the victim’s body.

Accordingly, the defendant tried to photograph the body of the victim who could cause sexual humiliation or shame by using smartphones with a camera function against his will, but attempted to do so.

2. The assertion and judgment

A. Defendant and defense counsel's assertion

The defendant and his defense counsel asserted that the defendant had had a right after the victim's time and place stated in the facts charged, but did not have a right to photograph the victim with a mobile phone, and that there was no fact that the victim had a right to photograph the video of the mobile phone or stored the mobile phone with the victim's right to do so.

B. Determination

1) In a criminal trial, the conviction in a criminal trial ought to be based on evidence of probative value that leads a judge to feel true beyond a reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the level that leads to such conviction, the court should determine the defendant’s benefit even if there is suspicion of guilt (see, e.g., Supreme Court Decision 201Do15767, Feb. 13, 2014). Meanwhile, in order to punish “the crime of taking pictures using carmeras” as an attempted crime under Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, it should be recognized that the commencement of the criminal act should be recognized, and in order to have the commencement of the criminal act, a specific and direct act should be commenced to input video information into the machinery, such as the body of the victim, focusing on the body of the victim through the equipment siren, such as a camera, etc., and an act of taking pictures 101Do1215, etc. (see, 1014Do15, etc.).

2) From the above point of view, in the instant case where the Defendant consistently denies the crime from the police to this court, the police and witness G from this court, which corresponds to the facts charged, among the evidence submitted by the Prosecutor, and the Defendant and the victim’s act, have been recorded by the prosecutor at the time when the Defendant and the victim’s act was recorded, and the witness G testified stated that “the Defendant observed a criminal scene in the police and the court, and described as “the Defendant’s mobile phone function is being operated at the time when the Defendant changed his mobile phone,” and the Defendant immediately escaped from the scene immediately after considering the horses of the above G, and immediately after the Defendant lost the aforementioned mobile phone.

There seems to be some circumstances to suspect that at the time the defendant had the intent to take the bottom of the victim such as the failure to submit the above mobile phone to the investigation agency.

3) However, the following facts are acknowledged by CCTV images installed in the same direction as the place where the above G was present at the scene of the crime, i.e., (i) the Defendant went to the entrance of the apartment in front of the victim and went to the entrance of the victim again, and then go to the victim again immediately after the passage of the victim and the crossing with the victim, and (ii) the Defendant ceased to stop the victim's fast, and the Defendant started to stop at a location far away from the victim's rear side, and immediately going to the direction towards the victim's left side. (iii) The time when the Defendant ceased to stop in the future, as seen above, was approximately two seconds, and the Defendant moved to the cell phone lying into the victim's hand, and committed an act to put the left hand.

(4) At the time of this case, the victim suffered a relatively low knee room. However, in full view of the fact that the victim’s hand, who used the mobile phone at the time, was only the victim’s hnee room, and that the Defendant’s hand was not in a position to photograph the victim’s hnee room, the Defendant’s hand alone was not in a position to take the victim’s hne roome room, and there is no other evidence to acknowledge this.

3. Conclusion

Thus, the facts charged of this case constitute a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure

Judges Lee Yong-hee