CONTENTS
- 1. Illegal Filming Using a Camera, a Case in Which Whether the Object Filmed Constituted a Person’s Body Was at Issue
- - Illegal Filming Using a Camera, the Determination of the Lower Court
- 2. Illegal Filming Using a Camera, the Determination of the Supreme Court
- 3. Illegal Filming Using a Camera, Daeryun’s Strategy
1. Illegal Filming Using a Camera, a Case in Which Whether the Object Filmed Constituted a Person’s Body Was at Issue
This was a case in which the issue was whether, in the crime of illegal filming using a camera, the act of recording and saving a body-image video received on a mobile phone constituted the act of filming a person’s body.
The defendant, while on a video call with the victim, used the recording function of his mobile phone to record and save the victim showering in the nude, and he was indicted for, among other charges, violation of the Act on Special Cases concerning the Punishment of Sexual Crimes (hereinafter the “Act on the Punishment of Sexual Crimes”).
Illegal Filming Using a Camera, the Determination of the Lower Court
The lower court upheld the judgment of the court of first instance, which had found the defendant guilty on the question of whether the act of using the mobile phone’s recording function to record and save the victim’s body-image video received on the mobile phone during the video call constituted the “act of filming a person’s body” under Article 14(1) of the Act on the Punishment of Sexual Crimes.
∙ Article 14(1) of the Act on the Punishment of Sexual Crimes
A person who films the body of another person that may cause sexual desire or shame, by using a camera or other mechanical device with a similar function, against the will of the person filmed, shall be punished by imprisonment for not more than seven years or by a fine not exceeding 50 million won.
2. Illegal Filming Using a Camera, the Determination of the Supreme Court
Unlike the lower court, which had found the defendant guilty of the crime of illegal filming using a camera, the Supreme Court held that the conduct did not constitute the act of filming a person’s body.
The precedents state that “only the act of directly filming a person’s body itself constitutes the act of filming a person’s body as provided in the above provision, and the act of filming a video containing an image of a person’s body does not fall within it.” (See Supreme Court, Decision of June 27, 2013, 2013 Do 4279; Supreme Court, Decision of August 30, 2018, 2017 Do 3443, and others.)
Accordingly, the Supreme Court held that, among the facts charged in this case, the defendant’s act of using the mobile phone’s recording function to record and save the victim showering in the nude during the video call was directed not at the victim’s body itself but at the body-image video received on the defendant’s mobile phone, and therefore cannot be regarded as constituting the “act of filming a person’s body” under the above provision.
The Supreme Court stated that the lower court’s upholding of the judgment of the court of first instance, which had found this part of the facts charged guilty, was based on a misapprehension of the legal principles concerning Article 14(1) of the Act on the Punishment of Sexual Crimes, and it reversed and remanded the lower judgment.
Illegal Filming Using a Camera, What If You Distribute a Nude Video You Filmed Yourself?
A judgment was rendered holding that distributing a nude video one filmed oneself constitutes the crime of distribution of obscene material but does not constitute the crime of illegal filming using a camera.
The court found the defendant, who had been indicted on the charge of distributing to an acquaintance nude photographs and a video containing showering scenes received from the victim, not guilty on the charge of the crime of illegal filming using a camera.
However, the court found the defendant guilty on the preliminary charge of distributing obscene material under the Network Act.
The court stated, “The filmed material provided for by the statute refers to filmed material that captures the body of ‘another person’ as the person filmed, and to include even material in which a person films his or her own body within the scope of filmed material would depart from the ordinary meaning.”
3. Illegal Filming Using a Camera, Daeryun’s Strategy
This was a case in which the issue was whether the object filmed was one that gives rise to the crime of illegal filming using a camera.
As in the above case, not only the act of filming a video containing an image of another person’s body, but also the act of saving a video in which the other party voluntarily filmed and transmitted his or her own nudity, has not been treated as a violating act.
In the case of the crime of illegal filming using a camera, the scope of the object filmed, the standard for judging sexual shame, the point at which the act commences, and the will of the person filmed, among other factors, may serve as important elements in the judgment.
Because, if the charge is established, it is punishable by imprisonment for not more than seven years or a fine not exceeding 50 million won, it is advisable to respond thoroughly from the early stage of the case.
In particular, where a guilty verdict is rendered for a sexual offense such as the crime of illegal filming using a camera, security measures such as registration of personal information are imposed together, resulting in numerous restrictions.
The Sexual Offense Response Group of Daeryun Law Firm LLP provides tailored strategies for the protection of clients’ rights and interests through 🔗attorneys experienced in sexual offense matters who have handled numerous sexual offense cases, including illegal filming offenses.
