Defendant

The misunderstanding of facts and misunderstanding of legal principles that the defendant is off from the body of the victim who made the alcohol does not constitute an objectively indecent act, and there was no intention to commit an indecent act in a subjective aspect, and constitutes a constituent element of domestic affairs.

Even if it does not violate social rules.

The sentence of the lower court on unreasonable sentencing (the fine of 5 million won and the order to complete a sexual assault treatment program 40 hours) is too unreasonable.

The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

Judgment

An indecent act on the assertion of mistake and misapprehension of legal principles refers to an act that causes sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus infringes on the victim’s sexual freedom. Whether an indecent act constitutes such an act shall be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship between the offender and the victim, circumstances leading to the act, specific manner of the act, objective situation surrounding the act, sexual morality, etc.

(see, e.g., Supreme Court Decision 2009Do13716, Feb. 25, 2010). Moreover, there is no subjective motive or purpose to stimulate sexual humiliation as a subjective element necessary for the establishment of the crime of indecent act by compulsion.

(See Supreme Court Decision 2013Do5856 Decided September 26, 2013, and Supreme Court Decision 2005Do6791 Decided January 13, 2006, etc.). In full view of the following: (a) the situation of the victim at the time of the instant case acknowledged by the lower court and the lower court based on the evidence duly admitted and examined by the lower court and the lower court; (b) the circumstances leading up to and following actions by the Defendant from the victim; (c) the age of the Defendant and the victim; and (d) the relationship between the party and the victim, even if the victim was in a close-friendly relationship with the Defendant; and (c) the person suffering from earth and sand is deemed as not suitable for sanitation, and thus, (d) such activities were objectively conducted against the victim’s will.