성폭력범죄의처벌등에관한특례법위반(카메라등이용촬영) 죄의 구성요건 해석 및 개선방안

The current Act on Special Cases concerning the Punishment, etc. of Sexual Crimes prescribes punishment for an “illegal picture-taking a body part of a person against his or her will to cause sexual desire or shame using a camera or other mechanical device with similar functions” as a sexual violence crime. The court, however, restricts “body parts to cause sexual desire or shame” to the certain sexual parts and interprets that there should be excessive exposure to surpass the common degree, thus failing to guarantee the victim's “sexual self-determination right” and “freedom of not being filmed without permission.” This study analyzed various precedents regarding the body parts to cause sexual desire or shame based on their fact relevance and grounds for arguments, identified problems with the judgment criteria, and examined valid interpretation criteria. In case of interpreting the body parts to cause sexual desire or shame, the criterion should be whether the victim's sexual self-determination right and freedom of not being filmed without permission are violated as a human being in one-sided acts of shooting the victim as a sexual object against his or her will rather than whether the body parts of shooting are sexual parts or exposed excessively to cause sexual desire. It is thus needed to revise the components from that perspective.