The judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

1. Summary of grounds for appeal;

A. misunderstanding of facts and legal principles did not use violence or intimidation to the extent that the Defendant could make it difficult for the Defendant to resist against the victim, and the Defendant’s act cannot be deemed an indecent act by force, and the Defendant did not have the intent to commit an indecent act by force. Therefore, the crime of indecent act by force is not established.

B. The punishment sentenced by the lower court (the amount of KRW 5 million, the amount of KRW 40 hours, the amount of KRW 5 million, the amount of KRW 40 hours) is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts, the Defendant argued to the same effect in the lower court.

The court below rejected the defendant's assertion based on evidence duly admitted and examined, such as the victim's statement in investigative agencies and courts, and the message sent by the defendant to the victim, and acknowledged the establishment of a crime of indecent act by force.

In order to determine the credibility of a statement after the first instance court proceeded with the witness examination procedure in the criminal trial procedure, it is necessary to assess the credibility of the statement by taking into account all the circumstances that are difficult to record in the witness examination protocol, including the appearance and attitude of the witness who is going to make a statement in the open court after being sworn in the presence of a judge, the appearance and attitude of the witness who is going to make a statement in the open court, and the pen of the statement.

On the other hand, the appellate court's determination of credibility of the statement made by the witness in the first instance court under the current Criminal Procedure Act is based on the records including the witness examination protocol in principle, so it has the intrinsic limitation that the appearance, attitude, and statement of the witness at the time of the statement that can be considered one of the most important factors in determining credibility of the statement can not be reflected in the evaluation of credibility.

This difference between the first instance court and the appellate court's method of evaluation of credibility is the criminal litigation law of Korea.