성폭력법상 카메리등이용촬영죄에서의 구성요건 해석문제

Abstract

‘Act on the Punishment of Sexual Crimes and Protection of Victims thereof' has been punishing picture-taking by using camera or mechanical devices which induces sexual desires of others, or shame of those opened to shooting in order to block the phenomenon of fetishism. But it is difficult to find consistency in the application and interpretation of that law in a series of recent cases. It is because of the impossibility of victim identifying and distinguishing, the degree of open space and symbolism of body which influence on the sexual desire of others or physical or sexual shame. But the above factors are not proper elements to deny inducing sexual desire of others or sexual shame. The most basic element is the victim's intention. And it is natural that we can know the danger of routine judgement of sexual desire and sexual shame by going through a two-step judging process. In addition, the concept of sexual desire, or the shame in the crime of illegal picture-taking is criminal sexual desires of himself or others or sexual shame beyond mere curiosity, or simple shame and disgust. When a normal average person feels a weak fundamental human shame against sexual morality in society as a personal existence, if it is not destroyed, the notion of sex exists for sound moral values is injuried, sexual desire or the shame in the crime of illegal picture-taking is acknowledged. The concept of sexual desire or the shame in the crime of public indecency and obscene thing is to destroy humanity, human dignity or blatantly distort the representation of gender, people's dignity and value of sexual vice seriously. Those are only interested in sexual appeal, and reveal a naked act of normal sexual shame and hurt the good mind of public and the notion of sexual morality. In this sense, the concept of sexual desire or the shame in the crime of illegal picture-taking is a broad sense of sexual desire or the shame unlike that of in the crime of public indecency and obscene thing. The current judging criteria which judge the cause of sexual desire or shame by the body parts is overly alienated with the goals of ‘Act on the Punishment of Sexual Crimes and Protection of Victims Thereof' and norms reality and the situation of our society. So the criteria has to be replaced as more comprehensive and precise scale which consider society's sexual morals notions, gender culture, the victim's intention, sex, age, relationship with criminals, filming the context of post-war conduct, both before and after shooting the victim's attitude, filmed parts of the body, kind of clothes and state of wearing.