성폭력범죄의처벌등에관한특례법위반(13세미만미성년자위계등추행)
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than two years and six months.
However, for three years from the date this judgment becomes final and conclusive.
1. Summary of grounds for appeal;
A. In light of the legal principles and the fact that there was no physical contact with the victim of the instant crime, the lower court convicted the Defendant of the instant facts charged even though it is difficult to deem that an indecent act was committed by force against a child under the age of 13. The lower court erred by misapprehending the legal doctrine.
B. The sentence imposed by the court below on the defendant (the imprisonment for three years and the suspension of execution for five years, probation, community service for 200 hours and sexual assault treatment lectures for 100 hours) is too unreasonable.
2. Determination
A. As to the assertion of misapprehension of the legal doctrine, the legal interest protected to the crime of indecent act by force against a person under the age of 13 as stipulated in Article 7(5) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) is “the right to form sexual identity and values without psychological disability without psychological disability where a child under the age of 13 is under the age of 13.
“Indecent act” means an act that causes a general and average person in the same place as the victim objectively to cause a sense of sexual humiliation or aversion and violates good sexual morality, and thus infringes on the victim’s sexual freedom. Whether it constitutes an act should be determined by comprehensively taking into account the victim’s intent, gender, age, relationship between the perpetrator and the victim, circumstances leading to the act, specific form of act committed against the victim, surrounding objective situation, and the sexual morality concept of that time.
In addition, the term "defensive force" is a force sufficient to suppress the victim's sexual free will, and is not a tangible or intangible, and not only a assault and threat but also a social, economic or political position or right of the actor.