A defendant shall be punished by imprisonment for one year.

However, for a period of two years from the date this judgment becomes final and conclusive.

직권판단 검사는 이 사건 공소사실 중 피고인이 피해자의 가슴을 만지고, 왼손으로 피해자의 속옷 안으로 손을 집어넣어 음부를 만진 후 피해자의 입에 키스를 하고, 피해자의 상의와 브래지어를 위로 올려 피해자의 가슴을 빤 행위를 피해자에 대한 유사강간 범행과 구별되는 강제추행 범행으로 보아 실체적 경합범으로 공소를 제기하였고, 원심도 같은 취지로 판단하였다.

However, in light of the relationship between the crime of similar rape and the crime of indecent act by compulsion, the court below determined that the crime of indecent act by compulsion in the judgment did not constitute a separate crime of indecent act by compulsion, by absorbing the crime of similar rape in the judgment.

Nevertheless, the judgment of the court below that the crime of indecent act by compulsion is established separately from the crime of similar rape, and there is an error of law by misunderstanding the legal principles, thereby affecting the conclusion

The former Criminal Act (amended by Act No. 11574, Dec. 18, 2012) only punishs “influence between the female gender” as the crime of rape, and any similar sexual intercourse was punished only for the crime of indecent act by compulsion.

Article 297-2 of the Criminal Act, amended by Act No. 11574, Dec. 18, 2012, in order to punish similar sexual intercourse among the acts committed in the previous indecent act by force, by reflecting the various aspects of sexual assault crimes, newly establishing similar rape crimes by stipulating that “a person who, by assault or intimidation, puts another person into the inner part of his/her body (excluding sexual intercourse), such as mouth, anus, etc. (excluding sexual intercourse), or puts another person into his/her sexual organ or anus, shall be punished by imprisonment for a fixed term of at least two years.” However, Article 298 of the former Act on Indecent Act on Indecent Act by force was maintained.