(영문) 광주지방법원 2017.7.5. 선고 2016노4971 판결

Although the physical parts of the victim taken by the defendant were delegated to the general public that could cause a sense of sexual humiliation, the judgment of the court below that judged the defendant not guilty is erroneous in the misapprehension of legal principles, which affected the conclusion of the remaining judgment.

2. Determination

A. Summary of the facts charged in this case

The defendant is a person who is the head of the electricity division in the Nam-gu apartment management office of Nam-gu, Gwangju, and the victim C is a resident of the above apartment.

On June 8, 2016, around 10:30 on June 10, 2016, the Defendant saw that the victim her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her but her her her her

As a result, the defendant taken the body of the victim who could cause sexual humiliation or shame by using a camera or other similar mechanism.

B. Judgment of the court below

For the following reasons, the lower court acquitted the Defendant under the latter part of Article 325 of the Criminal Procedure Act.

1) Article 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, etc. of Sexual Crimes, which punishs acts of photographing another person’s body, which may cause sexual humiliation or shame against the latter’s will, is aimed at protecting the victim’s sexual freedom and without permission. Whether the body of another person, which may cause sexual humiliation or shame, objectively constitutes “the body of another person,” should be objectively determined by taking into account whether the body falls under “the body of another person, which may cause sexual humiliation or shame” from the perspective of the general and average person of the victim, such as gender like the victim, age group, and the degree of exposure, not only the victim’s clothes, the degree of exposure, etc., but also the circumstances leading to the photographer’s intent, degree and distance of photographing, the image of the photographer board, the image of the specific body parts, etc. (see Supreme Court Decision 2015Do16851, Jan. 14, 2016).

2) According to the evidence adopted and examined by this court, the following facts can be acknowledged.

① At the time when the Defendant photographs the victim, the victim was exposed to the victim’s body in the way that the victim was living in the house after putting the D of the place where he was living in the house (which does not correspond to the breathbbbbing zone) and the batts of anti-packers’ clothes. ② The photograph of the victim (Evidence No. 25 pages) taken by the Defendant is merely taking body and arms except for the victim’s name and head, and the body and arms, and the bats, and the bats do not particularly take her part. ③ After finding the victim that the Defendant reported on his duties in the apartment management office was passing through the management office, the Defendant taken the victim 3 meters following the apartment delivery, and followed the victim her bat around 3 meters prior to the management office, but the part that was taken by the Defendant, such as: (i) taking the body and arms except for a particular way, or entering the view of a person without using a specific method, and (ii) taking the body.

3) Examining these facts in light of the legal principles as seen earlier, it cannot be deemed that the physical condition of the victim taken by the Defendant constitutes a body that may cause sexual humiliation or shame from the perspective of the general and average person of the same gender and age group as the victim. There is no other evidence supporting the facts charged.

C. Judgment of the court below

Considering the reasoning of the judgment below's acquittal and the evidence submitted, the court below's decision that the defendant is not guilty is just for reasons as stated in its holding.

Therefore, the prosecutor's argument is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.