In a case where the defendant was prosecuted for violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes on the ground that he committed an indecent act by force, on the ground that he committed an indecent act by force, and that the defendant's act constitutes an indecent act by force, in a case where the defendant's act should be seen as an indecent act by force, although he did not constitute an indecent act by force.

In a case where the defendant was prosecuted for violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes by taking the defendant's act into consideration the following circumstances: (a) the defendant committed an indecent act against the defendant under 13 years of age in an apartment elevator by taking the girth of his body, cutting off his sexual organ into several directions, and she committed an indecent act by force near the direction Gap, and committed an indecent act by force; and (b) the defendant intentionally committed an indecent act by using the space in a narrow and closed elevator and formed a situation where the defendant cannot immediately escape from the above situation, even though he did not directly contact the defendant's body, and even if the defendant stopped, and even after the elevator stopped, he could escape from the above situation, the defendant's act constitutes an indecent act by force, and thus constitutes an indecent act by force; and (c) the judgment below erred in the misapprehension of legal principles as to an indecent act by force.

Article 7(5) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Defendant

Prosecutor

Attorney Jeong Chang-nam et al.

Gwangju High Court Decision 2011No37, 2011No5 decided May 31, 2011

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Defendant case;

A. The point of indecent act by compulsion against the victim non-indicted 1

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s judgment that there was no evidence of crime regarding the crime of indecent act by compulsion against the said victim, did not err by misapprehending the legal doctrine regarding indecent act by compulsion, as alleged in the grounds of appeal, thereby affecting the conclusion of the judgment.

(b) An indecent act by force on persons under 13 years of age;

(1) The legal interest protected by the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is to “the right to form sexual identity and values without any improper sexual stimulation or physical disorder where a child under the age of 13 is under the age of 13” (see Supreme Court Decision 2009Do2576, Sept. 24, 2009, etc.).

“Indecent act” means an act that causes a general and average person in the same place as the victim to feel sexual humiliation or aversion and violates good sexual morality, and thus infringes on the victim’s sexual freedom. Whether an act constitutes an act ought to be determined by comprehensively taking into account the victim’s intent, gender, age, relationship between the offender and the victim, circumstances leading to the act, specific form of act committed against the victim, surrounding objective situation, and the concept of sexual morality during that period, etc. (see, e.g., Supreme Court Decisions 2009Do13716, Feb. 25, 2010; 2012Do936, Mar. 29, 2012).

In addition, the term “defensive force” means a force sufficient to suppress the victim’s intent of sexual freedom, which is either tangible or intangible or intangible, and not only assault and intimidation, but also use the offender’s social, economic, political status or authority. Whether an indecent act was committed by force should be determined by comprehensively taking into account various circumstances, including the following: (a) details and attitudes of the act committed against the victim; (b) details and degree of the force that exercised the right; (c) the type of the offender’s status and authority; (d) the victim’s age; (d) the relationship between the offender and the victim; (e) the degree of infringement on the victim’s sexual free will; and (e) the circumstances at the time of the crime (see Supreme Court Decisions 97Do2506, Jan. 23, 1998; 2008Do4069, Jul. 24, 2008, etc.).

(2) According to the evidence duly adopted, ① the Defendant and the person subject to a request to attach an order (hereinafter “Defendant”) committed an indecent act by force against Nonindicted Party 2 (V), on September 6, 2010, at the end of 13:45, in front of 110, 110, and 1-2, in the elevator located (title 1 omitted), and committed an act of self-defense against Nonindicted Party 2 (V), on the part of the elevator at the end of 110,00,000, in front of 15:05,000 per hour and 20,000,0000, in front of 10,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00).

According to the above facts, the Defendant: (a) intentionally narrow and closed elevator space with the victim as the object of the specific crime; (b) made the victim unable to request help without any other person except the victim; (c) made the victim feel a sense of shame; and (d) the Defendant’s act of taking the sexual organ from the victim’s view and taking the sexual organ out of the victim was an infringement upon the general public’s will of sexual freedom; and (c) made the victim, who is female 11 years of age who has witness the act, with severe mental shock; and (d) further, the victim, who is a weak victim, has a heavy body than himself/herself in a narrow space where he/she could not escape; and (e) made a psychological pressure or anxiety with the victim by taking advantage of the fact that the victim was fright and frighten, and reported it to the victim and frightd it to the victim, thereby making the victim a type of act close to the victim.

In light of the above legal principles, even if the defendant did not directly contact the victim's body and the elevator stopped from the 10th floor and the victim could immediately escape from the above situation, it is reasonable to view the above act committed by the defendant against the victim as an indecent act by force as an indecent act by force because it was committed by the force sufficient to suppress the victim's sexual free will.

Nevertheless, the lower court determined otherwise that it was insufficient to regard the Defendant as an indecent act by force on account of the circumstances such as the fact that the Defendant did not exercise tangible power or did not directly contact the victim’s body. In so doing, the lower court erred by misapprehending the legal doctrine on indecent act by force, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

C. Scope of reversal

Of the Defendant case of the lower judgment, the part of the acquittal on the charge of indecent act by force against the victim Nonindicted 1 cannot be maintained. Since the part of the lower judgment is in the same relation as the primary charge of indecent act by compulsion and the second ancillary charge of the entry into a house which the lower court found guilty, the part of the lower judgment against the victim Nonindicted 1 in its entirety should be reversed.

In addition, the part against the victim non-indicted 2 and the part against the victim non-indicted 1, which the court below found guilty, were sentenced to a single sentence on the whole on the grounds that they are concurrent crimes under the former part of Article 37 of the Criminal Act, and as long as the part on the victim non-indicted 1 was reversed, the part on conviction against the victim non-indicted 2 shall also be reversed.

Ultimately, among the judgment below, the defendant's case must be reversed.

2. As to the attachment order case

Before the judgment on the grounds of appeal is examined ex officio, as seen above, as long as the reversal of the defendant's case is inevitable, the attachment order case to be tried together and sentenced at the same time shall also be reversed.

3. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal as to the attachment order case, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)