The meaning of “indecent act” in the crime of indecent act by occupational force, etc. under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and whether the act of force itself includes cases in which the act of indecent act itself is deemed an indecent act (affirmative) and the meaning of

Article 10(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 15792, Oct. 16, 2018)

Supreme Court Decision 97Do2506 Decided January 23, 1998 (Gong1998Sang, 644) Supreme Court Decision 2013Do12803 Decided December 12, 2013

Defendant

Prosecutor

Law Firm Masan, Attorneys Hahn-kn et al.

Seoul Western District Court Decision 2018No1456 decided June 20, 2019

The judgment below is reversed, and the case is remanded to the Seoul Western District Court.

The grounds of appeal are examined.

1. The summary of the facts charged in this case is as follows.

The Defendant worked as the head of the division in Nonindicted Company 1 (English name omitted) located in the second floor of Seoul ( Address omitted) ○○○ Building, and had shown obscene materials in a usual computer to the victim Nonindicted 2 (V, 26 years old) who is in a position that it is difficult to easily refuse the Defendant’s instruction as a new member, as a new member, or had sexual obsesscis.

피고인은 2016. 10. 무렵부터 같은 해 11월 무렵까지 위 공소외 1 회사 사무실에서, 피해자에게 “볼이 발그레 발그레, 부끄한 게 이 화장 마음에 들어요. 오늘 왜 이렇게 촉촉해요?”라고 말하거나 검지와 중지 사이에 엄지를 넣은 상태로 피해자를 향해 팔을 뻗어 성행위를 암시하는 등의 행동을 하여 피해자가 거부감을 표시해 왔음에도 피해자에게 다가가 갑자기 “여기를 만져도 느낌이 오냐?”라고 말하며 손으로 피해자의 머리카락을 비빈 것을 비롯하여 2회가량 피해자의 머리카락을 만지고, 2회가량 피해자의 뒤쪽에서 손가락으로 피해자의 어깨를 톡톡 두드리고 이에 놀란 피해자가 피고인을 쳐다보면 혀로 입술을 핥거나 “앙, 앙”이라고 소리내는 등의 방법으로 피해자를 추행하였다.

Accordingly, the defendant committed an indecent act by force against a person who is under the protection and supervision of the defendant due to the business relationship.

2. Based on its stated reasoning, the lower court upheld the first instance judgment that acquitted the Defendant on the ground that it is difficult to deem that the Defendant committed an indecent act against the victim by exercising occupational power even if the Defendant is the superior of the victim on duty.

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. In the crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Act on the Abuse of Occupational Authority, etc.), the term "act of force" refers to a sufficient force to suppress the victim's free will. Since it is not tangible or intangible, it is possible to use not only assault and intimidation but also social, economic, political status or authority. The act of force itself includes cases where the act of force itself is acknowledged as an indecent act. It does not require the actual suppression of the victim's free will. In this context, the indecent act is objectively against the concept of sexual morality and sexual morality (see, e.g., Supreme Court Decisions 97Do2506, Jan. 23, 1998; 2013Do12803, Dec. 12, 2013).

B. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

(1) The Defendant served as a career member of the △△△△△△ Team of Nonindicted Company 1 as the head of the career worker of the 30 middle group, and the victim was a new member of the 20 middle group who was employed in Nonindicted Company 1, and was employed in the △△△△△△△△△ Team, and was working in the immediately right side of the Defendant, who was a commercial person, while working in the immediately right side of the Defendant, while performing duties

(2) From the time when the victim had become a member of the victim, the Defendant had been frequently engaged in sexual harassment, such as showing obscene videos by a computer or showing obscene images or suggesting sexual acts, as stated in the facts charged, to the victim from time to time, and the victim also expressed his refusal to do so to the Defendant.

(3) The Defendant’s above acts led to fear of a sense of Madry, sexual humiliation, etc., and failed to take proper measures on the water. Ultimately, the Defendant’s act was diagnosed by a hospital with depression, and took care of the drug by prescribing it.

(4) 그런 와중에 피고인은 공소사실 기재와 같이 피해자에게 다가가 갑자기 “여기를 만져도 느낌이 오냐?”라고 말하며 손으로 피해자의 머리카락을 비비거나 피해자의 뒤쪽에서 손가락으로 피해자의 어깨를 톡톡 두드리고 이에 놀란 피해자가 피고인을 쳐다보면 혀로 입술을 핥거나 “앙, 앙”이라고 소리내는 행위를 하였고, 피해자는 이로 인하여 성적 수치심을 느꼈다고 진술하였다.

(5) On the other hand, when the victim shows the victim's repeated sexual harassment, etc., the victim did not leave the victim's work, leave the victim's work, or let the victim attend the work immediately before leaving the work, or inform the victim of the information related to the company's work, and led the victim to drink in handling the work.

(6) The victim who caused these days to overlap eventually submitted a resignation letter to the company.

C. Examining the above facts in light of the legal principles as seen earlier, it can be sufficiently recognized that the Defendant committed an indecent act by force against a person under his/her protection and supervision due to his/her duties, employment or other relations, where the Defendant committed an act as described in the facts charged against his/her will clearly and against his/her will, not only violates the sexual freedom of unmarried female victims, but also exceeds the moral criticism from the perspective of the general public. Furthermore, in light of the relationship between the Defendant and the victim, the behavior or circumstances at the time of the indecent act, etc., it can be sufficiently recognized that the Defendant committed an indecent act by force against a person under his/her protection and supervision due to his/her duties

D. Nevertheless, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the crime of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Acts in occupational capacity, etc.) in maintaining the judgment of the first instance court which acquitted the Defendant of the facts charged

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)