성폭력범죄의처벌등에관한특례법위반(업무상위력등에의한추행)
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 3,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. The Defendant committed an indecent act by mistake of facts or misapprehension of legal principles on the part of the victim in order to commemorate and propose Blus, and the Defendant did not commit an indecent act on the part of the victim by taking the victim’s hand as stated in the judgment of the court below, taking the victim’s hand, and making twice the victim’s blus in spite of the victim’s refusal to refuse to do so. The judgment of the court below is erroneous in the misapprehension of legal principles or
B. The lower court’s sentence of unreasonable sentencing (including a fine of 5 million won, and completion of a sexual assault treatment program 40 hours) is too unreasonable.
2. Determination
A. Determination on the assertion of mistake of facts or misapprehension of the legal principles is established when a indecent act is committed by deceptive means or by force against a person under his/her protection and supervision due to work, employment and other relationship. In this case, “defensive force” is a force sufficient to suppress the victim’s free will, and is not tangible, intangible, or intangible, so it is possible to use not only assault and threat, but also social and political status or rights, and accordingly, the victim’s will of free will is not necessary (see, e.g., Supreme Court Decision 2007Do8135, Nov. 29, 2007). Meanwhile, “indecent act” is an act that causes sexual humiliation or aversion and goes against good faith and thus infringes on the victim’s sexual freedom or sexual self-determination right, and thus, constitutes such act must be comprehensively considered in light of the victim’s intent, gender, age, offender and victim’s relationship before the offender and the victim’s act, specific circumstances leading to the sexual morality in the age.
In addition, it is intended to stimulate sexual desire as a subjective element necessary for the establishment of the crime of indecent act by compulsion in criminal law.