2015No192 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (ameras, etc. and photographing them)

A

Defendant and Prosecutor

Park Jong-dae (Court of Prosecution), Jeon Soo-young (Court of Public Trial)

Attorney B

Suwon District Court Decision 2014Ra1829 Decided December 17, 2014

June 11, 2015:

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

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 be ordered to complete the sexual assault treatment program for 40 hours.

The seized Samsung Tallon 2 set shall be forfeited from the defendant.

The defendant shall be ordered to pay the amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Defense counsel (fact-finding or misunderstanding of legal principles)

In light of the fact that each photograph listed in the annexed list 1 and 2 of the judgment of the court below (hereinafter referred to as "the photograph of this case") does not specify or emphasize only the part of the victim's bridge, but photographs of the upper half and the lower half of his body in a well-known state, the place taken is a large range of pedestrians, and the victim's appearance in the photograph is an ordinary student who can frequently be seen from the streets, it does not constitute a body that may cause sexual humiliation or sense of shame. Further, in light of the fact that the woman's appearance leading to the distance at the time is healthy and beautiful, the defendant taken pictures of the victim's body and the body body of another person who may cause a sense of sexual humiliation or shame, or that the defendant did not have any evidence to prove the facts charged of this case. Meanwhile, the court below did not establish the seizure report of this case as evidence.

Nevertheless, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby finding the Defendant guilty of the facts charged.

(b) An inspection;

In light of the fact that each of the crimes of this case was taken by the defendant using his mobile phone cameras without the permission of the son, which is a part of the bridge, the body part of which is the sensitive body part of women, and thus, the nature of the crime is bad, and the defendant has the record of being punished as a violation of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc., the punishment of the court below which postponed the sentence of a fine of 2 million won is too unreasonable.

2. Determination

A. Judgment on the misconception of facts or misapprehension of legal principles by defense counsel

(1) Article 14(1) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims, which punishs acts of photographing another person’s body, which may cause sexual humiliation or shame against the latter’s will, by using a camera or other similar mechanism, shall be aimed at protecting the victim’s sexual freedom and right not to be taken without permission. Whether the body of another person taken falls under “the body of another person, which may cause sexual humiliation or shame.” In addition, whether the body of another person taken is objectively “the body of another person,” such as the victim’s sex, age group’s general and average person, should be considered in light of the degree of exposure, not only the victim’s clothes, degree of exposure, etc., but also the developments leading up to the photographer’s intent, degree and distance of photographing, image of the taken original board, and whether the body part has emerged, should be considered relatively specific, individual, individual, and individual (see, e.g., Supreme Court Decision 2008Do78, Sept. 25, 2008).

In full view of the aforementioned legal principles and the following circumstances that can be recognized by comprehensively taking account of the evidence duly adopted and examined by the court below, the instant pictures constitute “other person’s body that may cause sexual humiliation or shame.”

① The instant pictures do not take the body image of the victims at a certain distance away from the victims, but rather take the body part, excluding the body part, excluding the body part, and the body part of the body part, excluding the body part, in particular, among them, at a relatively close distance from the victims.

② The victims’ form accounts for a considerable portion of the pictures located in the center of the instant pictures, and it cannot be deemed that the Defendants’ daily form was naturally stamped in the process of taking a distance, such as a storm that the Defendant ordinarily shoots in the view of people.

③ As to the intent to take the instant pictures and the background leading up to taking them, the Defendant himself stated, “I am unfolded and taken them as bad,” “I am saw a woman to be mixed,” “I am am shot at home”, “I am shot at home with one hand of a cellphone (Evidence No. 17-18 pages of the evidence record),” and “I am shot in the state of a cell phone because I am knife with a cellphone because I am knife with a cell phone because I am knife with its head,” and “I am knife because I am am knife with its head, and am knife with its body,” (Evidence No. 121-122 pages of the evidence record).

(2) The evidence cited by the court below constitutes evidence supporting the facts and circumstances of each of the instant crimes, and thus, it cannot be deemed that the court below erred in finding it as evidence of guilt.

(3) Therefore, the judgment below which found the Defendant guilty of the facts charged of this case is just and there is no error as alleged in the grounds of appeal.

B. Judgment on the prosecutor's assertion of unfair sentencing

The defendant was sentenced to a fine on November 6, 2006 by the Seoul Central District Court for the violation of the Act on the Punishment of Arrangement of Commercial Sex Acts, Etc. In light of the motive and background of each of the crimes of this case, circumstances before and after the crime, degree of damage, and other various matters stipulated in Article 51 of the Criminal Act, which are conditions for sentencing, such as the defendant's character and behavior, and the environment as shown in the records and arguments of this case, the prosecutor's above assertion is reasonable.

3. Conclusion

Since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the following is ruled again.

Criminal facts and summary of evidence

The summary of the defendant's criminal facts and evidence is as follows, except for adding "1. mobile analysis results" to the main column of the evidence, since it is the same as that of each corresponding column of the judgment of the court below, and all of them are cited in accordance with Article 369

Application of Statutes

1. Article applicable to criminal facts;

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

1. Commercial competition;

Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

Selection of each fine

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Invitation of a workhouse;

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

1. Order to complete programs;

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

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Order of provisional payment;

Article 334 (1) of the Criminal Procedure Act shall submit personal information

When a conviction on a crime committed in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, which is a sex offense subject to registration becomes final and conclusive, the defendant is a person subject to registration of personal information under 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 relevant agency pursuant

Disclosure Order and Exemption from Notice Order

In light of the Defendant’s age, occupation, risk of repeating a crime, motive, progress, seriousness of a crime, disclosure order or notification order, the degree and expected side effects of the Defendant’s disadvantage and expected side effects, the preventive effect of a sexual crime subject to registration which may be achieved therefrom, the victim protection effect, etc., in full view of the Defendant’s age, occupation, risk of repeating a crime, motive and consequence of the crime, and the disclosure order or notification order, it is determined that there are special circumstances where disclosure of personal information may not be notified pursuant to Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, proviso of Article 49(1)

The presiding judge, a judge;

Judges Kim Young-young

Judges Hong Young-jin