1. The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by means of violence or intimidation, but also the case where the act of assault itself is deemed an indecent act. In this case, an assault does not necessarily require that the degree of suppressing the other party’s intent is limited, and so long as there is exercise of force against the other party’s will, regardless of its force, it shall be decided upon (see, e.g., Supreme Court Decisions 91Do3182, Feb. 28, 1992; 945630, Aug. 23, 1994). In addition, an indecent act objectively causes sexual humiliation or aversion to the general public and infringes on the victim’s sexual freedom. Whether it constitutes such an act shall be determined after considering the victim’s intent, gender, age, relationship between the offender and the victim prior to such act, specific circumstances leading to such act, specific circumstances leading to such act, objective attitude of the act, and sexual morality at the age of the other party.

2. A. The summary of each of the facts charged in the instant case is that the Defendant: (a) forcedly 5 seconds by entering the victim in the vicinity of the victim’s residence; and (b) forced her own victim in front of the first floor of his/her residence; and (c) forced her face, such as her own victim in front of the first floor of his/her residence, and her face.

B. On the grounds indicated in its reasoning, the lower court affirmed the first instance judgment that acquitted the Defendant on the ground that it is difficult to view that each act of the Defendant was found to be an indecent act, but such an act of the Defendant does not constitute an indecent act, and that the act in front of the elevator was in a situation where the victim was in difficult to resist due to the Defendant’s assault, intimidation, or the act’s behavior.

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. According to the reasoning of the judgment of the first instance court and the lower court and the evidence duly admitted, the following facts are revealed.

1) The victim (the victim, 37 years old) notified the Defendant of the determination by agreement with the Defendant two weeks, and the Defendant was able to have the victim, her friend and her friend with his her friend with his friend with his her friend with his friend with his friend with his friend with his friend with his friend with her friend with his friend with his friend with his friend with his friend with his friend with his friend with

3) The Defendant and the victim arrived at the location of the victim’s house at a night of more than 12 weeks, and left the taxi. The Defendant was able to have the victim walked in the parking lot in order to return home and prevented the victim from returning home.

4) At this time, the Defendant came up with the victim, and the victim was pushed up immediately after the victim gets out of the land.

5) Since then, the Defendant continued to catch the victim, prevented him from returning home, followed the victim before the elevator, and went to the house of the victim while the victim was her refusal. 6) The victim was going to go to the house of the victim despite his refusal, and the victim was pushed back the defendant's arms to the purport that he was in front of the elevator, and the defendant was pushed off the defendant's arms to the effect that he was in front of the elevator, and the defendant was faced with the victim's own arms, and was put to the face again with the defect that the victim tried to cut back his body.

7) When the Defendant became aware of the victim, the victim saw the Defendant’s shoulder or fluort the Defendant’s shoulder, but the victim made a statement that he was to send it to the Defendant. However, in light of the legal principles as seen earlier, in light of the Defendant’s sex, age, relationship between the Defendant and the victim, the background leading up to the Defendant’s act, specific form of act, and objective situation, etc., the Defendant’s act of bringing the victim up before the parking lot, or the act of bringing the victim up and raising the victim before the elevator to the face is objectively against the ordinary public’s sense of sexual humiliation and aversion, and thus, it is reasonable to view that the act of assault itself constitutes an indecent act, and thereby infringing on the victim’s sexual freedom. Furthermore, the Defendant’s criminal intent may be recognized in light of the behavior of indecent act and the circumstances at the time.

4. Nevertheless, the lower court upheld the first instance judgment that acquitted the Defendant solely on the grounds as indicated in its reasoning. In so doing, the lower court erred by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending the legal doctrine on indecent act by compulsion, thereby adversely affecting the conclusion of the judgment. The prosecutor’s appeal pointing this out has merit.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Gin-deok

Justices Park Sang-ok

Justices Lee Dong-won