성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강제추행)
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 15,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. At the first trial of the court of the erroneous determination of facts or misapprehension of legal principles, the defendant's defense counsel withdraws his/her defense of erroneous determination of facts or misapprehension of legal principles among the grounds for appeal, but the defendant himself/herself stated that he/she denies the facts charged in the instant case, the defendant himself/herself
The defendant tried to pay attention to the victim as he can be able to face with the victim who was off his clothes with the date, time, place, and clothes of the decision of the court below, and in the process, the defendant's grandchildren contacted the victim's sexual intercourse.
The Defendant’s act does not constitute “indecent act” and did not have the intent to “indecent act” against the Defendant.
B. At the time of committing the instant crime, the Defendant was in a state of mental and physical disability due to uneasiness, depression, disability in recognition function, etc.
C. The decision of the court below on the grounds that the sentence of unfair sentencing (the fine of KRW 15 million, etc.) is too unreasonable.
2. Determination
A. As to the Defendant’s assertion of mistake of facts or misapprehension of legal principles, the crime of indecent act by compulsion is established not only where the other party commits an indecent act after making it difficult to resist by assault or intimidation, but also where the act of assault itself is deemed as an indecent act.
In this case, as long as the assault does not necessarily require that it be sufficient to suppress the other party's intention, and there is the exercise of tangible force against the other party's will, regardless of its power's diversity.
An indecent act means an act that objectively causes sexual humiliation or aversion to the general public and is contrary to good sexual moral sense, and thus infringing on the victim’s sexual freedom. Whether it constitutes such an act is the victim’s intent, gender, age, relationship between the perpetrator and the victim prior to such an act, circumstances leading to such act, specific form of act, and objective situation surrounding it, and sexually in the era.