“An acquaintance’s humiliation” “Photo files are not obscene objects.”

The Supreme Court ruled that if a third party requests the production of a photo file that combines the face and nude photos of an acquaintance, it cannot be punished for incendiary 淫畵 or obscene painting making This is because photographic files are computer program files, not document drawing 圖畵s or pictures, so they cannot be viewed as obscene objects under the criminal law

According to the legal community on the 5th, Supreme Court Justice Ahn Cheol-sang sent the case back to the Seoul High Court, breaking the court’s second trial ruling that convicted A, who was accused of being a teacher of incendiary culture, and others The Supreme Court ruled that “the lower court was at fault for misunderstanding the legal principles on the crime of manufacturing negatives.”

From April to November 2017, Mr. A entrusted a third party with the production of a sexual composite photo of a female victim in her 20s, an acquaintance It provided photos of acquaintances, names, ages and addresses, and asked them to “combine them with body pictures.” In the process, he sent messages that could damage the victim’s reputation and filmed illegally on the subway

A’s crime was discovered when he lost his cell phone during an evening meeting. An acquaintance who found a cell phone accidentally checked some of the pornographic composite photos and handed the cell phone to the victim The victim filed a complaint against A to the police and submitted his mobile phone as evidence

However, the police officer did not guarantee procedural rights, such as guaranteeing A an opportunity to participate in the digital forensics process of cell phones, and did not issue a warrant for illegal filming

The first and second trials convicted A of all charges of incendiary manufacturing teacher, illegal filming, and defamation. The common military court in charge of the first trial and the high military court in charge of the second trial sentenced A to eight months in prison

The first and second trials judged that the investigative agency’s process of collecting evidence was not illegal, saying, “The Criminal Procedure Act guarantees the defendant’s right to participate in the seizure and search process, but it cannot be considered to apply to seizure by voluntary submission.”

The Supreme Court’s judgment was different The Supreme Court judged that A was not guilty of charges of incandescent manufacturing teacher and illegal filming, excluding defamation

The Supreme Court first believed that the charge should be ex officio acquitted of the charge of teaching negative production. The Supreme Court said, “This part of the charge is at fault in the second trial of the lower court, so it cannot be said that computer program files fall under this category because the criminal law defines negative product as documents, drawings, films, and other objects.”

He then judged that the investigative agency’s process of collecting evidence was also illegal

The Supreme Court pointed out, “As the investigative agency confiscated A’s mobile phone, it did not confirm the intention of the victim regarding the scope of the submission, and conducted two interrogations of the suspect without obtaining a warrant for a separate illegal filming.”

In conclusion, it said, “Electronic information restored from mobile phones is evidence that has been illegally collected and has no evidence capability.”

It is judged that it cannot be used as evidence in accordance with the “principle of reading and reading” under the Criminal Procedure Act. In other words, the principle that “if a tree is poisonous, the fruit from that tree is also poisonous” cannot be convicted as illegal evidence

The Supreme Court concluded, “Nevertheless, the original ruling, which found illegal filming and phonemaking teachers guilty, was wrong to misunderstand the legal principles.”

He represented A in this case

JY

Kim Jung-hwan, a lawyer at the law office, said in a phone call with the Herald Economy, “It may be difficult to understand from the victim’s point of view, but the Supreme Court’s ruling that investigative agencies must adhere to the principle of due process under the Criminal Procedure Act.”

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