가. 사실 오인 피고인은 이 사건 당시 피해자를 격려하는 차원에서 패딩 점퍼 아랫부분을 툭 치면서 “ 대충 대충 해. ”라고 이야기 한 것에 불과 하고, 두꺼운 점퍼 위로 쳤기 때문에 어느 부분을 건드렸는지 알지도 못할 정도였으므로, 추 행의 고의가 없었다.

B. The punishment of the lower court (2 million won in punishment, and 40 hours in sexual assault treatment programs) that is unfair in sentencing is unreasonable.

2. The crime of indecent act by force against a mistake of fact includes not only cases where the other party commits an indecent act after making it difficult to resist by means of assault or intimidation but also cases where the body of the act of assault is recognized as an indecent act by the latter. In such a case, the assault must not necessarily be enough to suppress the other party’s intent.

Indecent acts are acts that cause sexual humiliation or aversion to the public objectively and are contrary to good sexual morality, which infringe on the victim's sexual freedom.

The determination as to whether a case constitutes a crime of indecent act ought to be made prudently by comprehensively taking into account the victim’s intent, gender, age, relationship between the perpetrator and the victim prior to such act, the background leading to such act, specific circumstances surrounding the act, and the sexual morality concept of the age (see, e.g., Supreme Court Decision 2013Do7838, Sept. 25, 2014). Moreover, there is not a subjective motive or purpose to stimulate, arouse, and satisfy the sexual desire as a subjective element necessary for the establishment of the crime of indecent act (see, e.g., Supreme Court Decision 2013Do586, Sept. 26, 2013). The Defendant asserted the same purport as the grounds for appeal in the lower court, and rejected the Defendant’s assertion by its reasoning.

Comprehensively taking account of the evidence duly adopted and examined by the court below, the victim himself at the time of the instant case.