2017 Highest 5424 Violation of the Special Act on the Punishment, etc. of Sexual Crimes (Kameras, etc.)

Coloring)

A

Paryaryary(prosecutions) and judisary(public trial)

Attorney B,C

December 21, 2017

The defendant shall be innocent.

1. Summary of the facts charged in this case

A. On July 28, 2017, around 21:50, the Defendant, within the subway E Station located in Young-gu, Suwon-si, Suwon-si, taking a photograph of the victim’s spawn by taking advantage of the video function of cell phone images attached immediately after the victim, who is in the name of escalator in the upper direction by suffering spatha, from the spatha.

B. The Defendant, at the time, at the time, and at the place under the above Paragraph 1, taken the fat of the victim F (V, 35 years of age), who was on board an escalator in the upper direction by suffering the fata in line under the above Paragraph 1, and taken the fat of the victim by using the video function of the cellular phone.

Accordingly, the Defendant taken the body of the victims who could cause sexual humiliation or shame over a total of twice as seen above against their will.

2. Defendant and his defense counsel’s assertion

The defendant did not have taken photographs of victims at the time and place of criminal facts.

3. Determination

A. Criminal facts in a criminal trial should be established based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that it would lead to such conviction, the interests of the defendant should be determined even if there are suspicions of guilt, such as inconsistency with the defendant’s assertion or defense or non-competence. Furthermore, the subject of such strict proof includes all specific criminal facts as stated in the indictment by the prosecutor. In particular, since the date and place of the crime specified in the indictment are mainly subject to the defendant’s right to defense, it should be acknowledged through strict proof, and it should not be acknowledged that there is proof of criminal facts on the grounds that there is a probability that the crime was committed at other time and place (see, e.g., Supreme Court Decisions 201Do2823, Aug. 21, 2001; 201Do1628, May 13, 2011).

B. Examining the following circumstances revealed by the evidence as seen earlier in light of the aforementioned legal doctrine, it is insufficient to recognize that the Defendant taken the victims at the time indicated in the instant facts charged, and there is no other evidence to acknowledge otherwise.

① The Defendant’s clothes, clothes, shoess, and shoes, etc., marked on the day from the Defendant’s dwelling elevator at the Defendant’s dwelling, correspond not only to the clothes, clothes, shoess, and shoess of those who used handphones in E Station E Station, which is the place of the instant crime, but also was very similar to his hair and face, and it is reasonable to view that the Defendant was in E Station around the instant time.

② According to the CCTV in the E calendar, the point of time indicated in the facts charged is between 21:50:25 to 21:50:35, and the point of time indicated in the facts charged appears to be between the view of the Defendant taken earlier and the time when the Defendant escaped and the Defendant runs again, namely, between 21:59:19 to 22:00:07. At the time indicated in the facts charged, the Defendant appears to have cited a mobile phone toward the part of the victim at the time indicated in the facts charged, and even at the time indicated in the facts charged, it appears that the Defendant used a mobile phone by immediately attaching to the victim and putting him/her on the part of the victim at the time indicated in the facts charged.

③ However, according to the report on the results of digital evidence analysis conducted by the Gyeongginam Provincial Police Agency and the cyber safety-related regional police agency, it was analyzed as follows: 09:11:5, 09:13:36, 09:14:02, 09:42:27, 10:42:40, 09:12:45, 09:14:19, 09:14:15, 09:14:31, 09:5:2, 09:14:5, 09:15:50, and 09:50. Considering the difference between the time established in CCTV and the time established in the Defendant’s mobile phone, it is difficult for the prosecutor to prove that the Defendant had been able to use the above storage device at the time of sexual crime and the distance between the Defendant’s 15:15:50.

④ After the Defendant was exposed to the victim as stated in the facts charged, the Defendant’s operation of the 10:17:37 to 10:17:45, 11:09:00 to 11:09:07, which is one of the 11:09:07, which is the subject of the charge, is likely to select and delete the files by using the program. However, if the Defendant operates the above program, it is difficult to completely delete the content of the use of the Kamera app or the storage of pictures stamped by using the Kamera app, and it is unclear whether it can not be restored even by using the program using the investigation agency.

⑤ 공소사실 나항의 피해자는 '다리 밑에 닿는 느낌이 들어 뒤를 봤더니 남자 한 명이 핸드폰 조명을 켠 채 치마 밑에서 찍고 있었다.'고 진술하였고, 그 상황을 인지한 후 피고인을 쫓아 가다가 놓쳐 바로 경찰에 신고한 것으로 보이기는 한다. 그러나 피해자가 카메라 앱의 작동 소리를 듣는다거나 달리 카메라 앱의 작동을 인지했던 것이 아니고, 피해자의 다리 밑에 닿는 물체의 촉각으로 행위자를 적발하게 되었을 뿐이다. 아울러 피고인이 카메라 앱이 아닌 조명이나 거울기능 등을 이용하여 피해자의 치마속을 관찰하였을 가능성 또는 카메라 플래시 기능을 작동하였으나 얼마 지나지 않아 적발되어 사진을 찍어 이를 저장하는 데까지는 이를 수 없었을 가능성도 상당하다. 따라서 위 피해자의 진술만으로 공소사실 나항 부분이 합리적인 의심의 여지없이 증명되었다고 보기 어렵다.

3. Conclusion

Therefore, the facts charged in this case constitute a case where there is no proof of crime, and thus, is acquitted pursuant to the latter part of Article 325 of the

Judges Kim Gin-do