In a case where the Defendant was indicted for violating the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amerasation) by photographing the parts of the Defendant’s body against the Defendant’s will by using a mobile phone in video-recording, etc. with the victim Gap and the Internet, the case affirming the judgment below which found the Defendant not guilty on the ground that the Defendant’s body was a video containing the body image of Gap and it was not itself of Gap’s body.

In a case where the Defendant was indicted for violation of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter “Act”) (hereinafter “Act”), on the ground that he/she taken the body parts of the Defendant’s cell phone with the victim A (the 14 years of age and 14 years of age) and the Defendant’s cell phone with an inherent camera function against Party A’s will using a video file, the case affirming the lower court’s judgment that found the Defendant not guilty on the ground that the Defendant’s body parts of the body were concealed in the video camera and transmitted to the Defendant’s computer, and that the Defendant stored the received information in the video file using the camera camera, etc. with the mobile phone with an inherent camera function, and that the body parts of the Defendant’s body are not included in Party A’s body images, and that it does not constitute an ordinary provision on the punishment of sexual crimes under Article 13(1) of the Act.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 13(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; see current Article 14(1)); Article 325 of the Criminal Procedure Act

Defendant

Prosecutor

Attorney Cho Young-chul

Chuncheon District Court Decision 2012No371 decided April 2, 2013

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Article 13(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 1156, Dec. 18, 2012; hereinafter “the Act”) provides that “the act of photographing another person’s body against his/her will, using a camera or other device with similar functions, which may cause sexual humiliation or shame,” among the facts charged in the instant case, shall be subject to punishment. The prior and ordinary meaning of “the photographing” is “the act of photographing another person’s body against his/her will,” and the aforementioned photographing is deemed to be “the body of another person who may cause sexual humiliation or shame,” and thus, the subject of punishment under the above provision is apparent to be “the body of another person who is able to cause a sense of shame or shame,” and thus, it is reasonable to interpret that the victim’s body or body is limited to the case where the victim’s body body is stored by using a camera or any other device with similar functions, and thus, it cannot be interpreted that the victim’s body or body is within his/her own computer.”

In light of the interpretation and legislative purport of Article 13(1) of the Act and relevant legal principles, the above determination by the court below is just and there is no error in the misapprehension of legal principles as to the interpretation of Article 13(1) of the Act as alleged in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)