성폭력범죄의 처벌 등에 관한 특례법상 디지털 성범죄의 몇 가지 쟁점 - 카메라등이용촬영죄, 촬영물등이용협박죄, 죄형법정주의

Traditional sexual violence crimes presupposed physical forces by the criminals against the victims. However, with technological advancements, sexual violations occurring in intangible spaces connected by information and communications networks(Technology Facilitated Gender Based Violence, or Digital Sexual Crimes) have emerged as a significant problem. ACT ON SPECIAL CASES CONCERNING THE PUNISHMENT OF SEXUAL CRIMES has been amended several times, and Articles 14 through 14-3 now define crimes such as “Taking Photographs or Videos by Using Cameras”, “Distribution of False Video Products” and “Intimidation by Using Photographs”, however, the complex legislative history and evolving technological environment present difficulties in interpretation. In order to interpret the above provisions, we must examine the principles of interpretation derived from the principle of legality. Criminal laws must be interpreted strictly, and interpreting them beyond the possible meaning of the text constitutes analogical interpretation, which violates the principle of legality. However, systematic interpretation that clarifies the logical meaning of the text within the scope of the text’s possible meaning, taking into account the legislative intent and purpose of the provision, does not violate the principle of legality. On the other hand, if the text itself consists of relatively clear concepts, systematic interpretation is limited. However, most court cases involve disagreements over the clarity of the text itself, and the process of determining the scope of the text's possible meaning becomes a normative judgment and subject to interpretive conflict. This can be confirmed by the conflicting between majority opinions and dissenting opinions in the Supreme Court en banc decision 2015Do6809(decided November 12, 2015) and the Supreme Court en banc decision 2015Do8335(decided December 21, 2017). Furthermore, the Supreme Court en banc decision 2006Do4549(decided November 16, 2006) shows that although a legal amendment was made to regulate a specific area, the court denied its application in that area based on a teleological narrow interpretation, resulting in a tense relationship with the legislation. As the core issue of this article, I critically reviewed a series of Supreme Court decisions that denied the crime of “Taking Photographs or Videos by Using Cameras” for the act of saving body images without the victim's knowledge during a video call(Supreme Court Decision 2005Do5396, decided October 13, 2005; Supreme Court Decision 2013Do4279, decided June 27, 2013; Supreme Court Decision 2017Do21656, decided March 15, 2018; Supreme Court Decision 2024Do10477, decided October 31, 2024; Supreme Court Decision 2024Do16133, decided June 5, 2025) and proposed an alternative interpretation. Whether the act of inducing the victims to expose part of their body during a video call and saving the body image without the victims' knowledge constitutes the crime of “Taking Photographs or Videos by Using Cameras” must be determined by understanding the entire process from the start of the video call to the point of saving. The video data was transmitted from the victim's communication device to the defendant's communication device, and the defendant stored the received data. The video data input was completed, and the filming act reached its completion. The defendant used a mechanical device to film the victim's body, and the fact that the victim voluntarily projected her/his body onto the victim’s video call device did not affect the crime. It is based on a systematic interpretation of the law, based on the technical aspects of the act, in determining the semantic scope of the word “filming”. The next issue is that the Supreme Court decision 2023Do17896, decided May 30, 2024(which ruled that in order to constitute the crime of “Intimidation by Using Photographs”, at least a video that causes the victim’s sexual shame must have been filmed) and the Supreme Court decision 2024Do14039, decided June 12, 2025(which ruled that if the filmed material was not directed at the victim, the crime of “Intimidation by Using Photographs” does not apply) run counter to the essence of the crime of intimidation, do not conform to the purpose of the new provision in the ACT ON SPECIAL CASES CONCERNING THE PUNISHMENT OF SEXUAL CRIMES, and lead to unreasonable results in trial practice. In cases where a threat is made as if a filmed material of the victim existed even though it did not exist. The requirements for recognizing the crime of “Intimidation by Using Photographs” should be interpreted within the possible meaning of the words, and should follow a uniform standard. There is no basis for requiring ‘actually produced filmed material’ as a positive element of the crime. The conclusion will not differ depending on whether the filming was never conducted in the first place, or whether the existing filming was deleted or otherwise ceased to exist at the time of the threat. In either case, the above circumstances will not affect the establishment of the crime. Even if it is not clear whether the filming was ever conducted, the relationship between the defendant and the victim, the specificity of the content must be considered to determine whether there are credible circumstances that the filming will be distributed. However, whether it is ‘objectively likely to cause the victim to be threatened’ must be judged based on the strict standard. The same principle applies to cases where a filming of the victim is presented at the time of the threat and deceived into thinking it was the victim's filming.