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(영문) 대법원 2006. 1. 13. 선고 2005도6791 판결

[미성년자의제강제추행][공2006.2.15.(244),286]

Main Issues

[1] Requirements for establishing a crime of indecent act by compulsion by minors under Article 305 of the Criminal Code

[2] The case affirming the judgment of the court below that the act of a teacher in the fourth-year attending an elementary school's sexual intercourse with another student's sexual organ in a classroom constitutes an "indecent act" as referred to in the crime of indecent act by compulsion of minors

Summary of Judgment

[1] The crime of indecent act by compulsion by a minor under Article 305 of the Criminal Code is under the legal interest of “the right and interest of a child under the age of 13 to form sexual identity and values without any psychological disorder in the absence of an inappropriate sexual stimulation or physical force from outside.” The subjective elements necessary for such establishment are sufficient only by intention, and there is no subjective motive or purpose to stimulate, promote, and satisfy sexual desire.

[2] The case affirming the judgment of the court below that the act of a teacher in the fourth-year attending an elementary school's sexual intercourse with another student's sexual organ in a classroom constitutes an "indecent act" as referred to in the crime of indecent act by compulsion of minors

[Reference Provisions]

[1] Article 305 of the Criminal Code / [2] Article 305 of the Criminal Code

Escopics

Defendant

upper and high-ranking persons

Defendant

Defense Counsel

Attorney Park Sang-hoon

Judgment of the lower court

Seoul Central District Court Decision 2005No2022 Delivered on August 30, 2005

Text

The appeal is dismissed.

The appeal is dismissed.

Reasons

Article 305 of the Criminal Act provides for the benefit and protection of the right to form sexual identity and values without psychological disorder to a child under 13 years of age without any improper sexual stimulation or exercise of physical influence. The subjective constituent elements necessary for the establishment thereof are sufficient only by intention, and there is no subjective motive or objective to stimulate, promote, and satisfy sexual desire.

The court below determined that the defendant, who is an elementary school-class teacher, committed an indecent act under Article 305 of the Criminal Act in light of the above legal principles or the records of this case, was justified, and that the defendant's act was committed four times in the classroom, and that the defendant's act was derived from educational intent, but it cannot be deemed that the education method has an appropriate educational method, and thereby adversely affected the psychological growth and the formation of sexual identity of the victim who was mentally and physically unsatisfy, and that it does not correspond to the present social environment, sexual value standards and morality concept. The court below's findings of fact and judgment of the court below are justified in light of the above legal principles or the records of this case, and there is no error of law by misconceptioning the facts against the rules of evidence or by misunderstanding the legal principles as to the requirements for establishment of an intentional indecent act by force, which affected the conclusion of the judgment.

Therefore, the appeal is dismissed. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)

심급 사건
-서울중앙지방법원 2005.6.30.선고 2004고단7830
본문참조조문