[1] The meaning and standard of determination of “indecent act” and whether a subjective constituent element of the crime of indecent act by compulsion requires “the subjective motive or purpose to stimulate, arouse, or satisfy sexual desire” (negative)

[2] In a case where a female victim Gap, who was known to the defendant, committed an indecent act in the sense of retaliation against the victim Gap by taking his head debt and taking violence, the case holding that the defendant's act constitutes "a indecent act" in the crime of indecent act by compulsion

[1] “Indecent act” means an act that causes a sense of sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus infringing on the victim’s sexual freedom. Whether an act constitutes such act ought to be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship between the offender and the victim prior to the occurrence of the act, circumstances leading to the act, specific form of the act, objective situation surrounding the act, and the sexual moral sense of the times. Moreover, a subjective motive or purpose is not required to stimulate, arouse, and satisfy sexual humiliation as a subjective element necessary for the establishment of the crime of indecent act by compulsion.

[2] In a case where Gap, a female victim Gap, known to the defendant, committed an indecent act in the sense of retaliation by putting assault against Gap's hair, ear, fry, breast, etc., within the meaning of retaliation, the case holding that the defendant's act constitutes "indecent act" in the crime of indecent act by compulsion on the ground that it is reasonable to view that Gap's act objectively infringed upon Gap's sexual freedom as an act that causes a general and average person a sense of sexual humiliation or aversion and thus causes a sense of sexual morality and is contrary to good sexual morality

[1] Article 298 of the Criminal Code / [2] Article 298 of the Criminal Code

[1] Supreme Court Decision 2001Do2417 Decided April 26, 2002 (Gong2002Sang, 1306), Supreme Court Decision 2005Do6791 Decided January 13, 2006 (Gong2006Sang, 286), Supreme Court Decision 2009Do2576 Decided September 24, 2009 (Gong2009Ha, 1805), Supreme Court Decision 2012Do3893, 2012Do14, 2012Do83 Decided June 14, 2012 (Gong209Ha, 1805)

Defendant

Prosecutor

Attorney Park Jae-in

Daejeon High Court (Cheongju) Decision 2013No37 decided May 2, 2013

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

An indecent act means an act that causes a sense of sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus infringing on the victim’s sexual freedom. Whether an act constitutes such an act ought to be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship before the actor and the victim, circumstances leading to the act, specific manner leading to the act, the surrounding objective situation, and the sexual moral sense of the time (see, e.g., Supreme Court Decision 2001Do2417, Apr. 26, 2002). Moreover, a subjective motive or purpose is not required to stimulate, stimulate, or satisfy sexual desire as a subjective constituent element necessary for the establishment of the crime of indecent act by compulsion (see, e.g., Supreme Court Decision 2005Do6791, Jan. 13, 2006).

According to the court below's judgment and the court below's duly examined evidence, the following facts are revealed: (a) the defendant, from the police to the court below, recognized the victim's entrance, ear, dub, chest and shoulder shoulder; and (b) the defendant, in the situation where the defendant was faced with his head by getting the victim's head, the defendant made a statement that he was in a state that he could not be able to control by explosion and sexually; (c) although there are some directors in the victim's statement, the defendant consistently made the statement that he tried to kis, carried the fry, carried the chest, and carried the chest, and the victim can be deemed to have filed a complaint by considering that the defendant's act infringed his sexual freedom.

On the other hand, even though the defendant's act did not have any subjective motive or purpose to stimulate, arouse, or satisfy his sexual desire as an act in the sense of retaliation against the defendant's act of assault by taking violence upon the defendant's head's head debt, it is reasonable to view that the defendant's act objectively constitutes an act that causes sexual humiliation or aversion to a general and average person and goes against the good sexual moral sense, and thereby infringes on the victim's sexual freedom. Thus, the defendant's criminal intent may be recognized in light of the behavior of indecent act and the circumstances at the time.

Therefore, among the facts charged in this case, the court below found the defendant not guilty of this part of the charges on the ground that it is difficult to view the defendant's act to have reached an indecent act on the grounds that it is difficult to view that the defendant's act had reached an indecent act, and it is difficult to view that the defendant had an intention to commit an indecent act on the part of the defendant at the time. It is erroneous in the misapprehension of legal principles as to "Indecent Act" and thereby affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court 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.

Justices Park Poe-dae (Presiding Justice)