[1] The meaning of “indecent act” and the standard for determining whether an indecent act constitutes an indecent act in the crime of indecent act

[2] Whether the crime of indecent act by compulsion constitutes an “self-denunciation” (negative) / Whether an indecent act by using the victim’s body as a tool constitutes an indirect crime of indecent act by compulsion (affirmative)

[1] In the crime of indecent act by compulsion, indecent act means an act which objectively causes 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 it constitutes this shall be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship between the perpetrator and the victim prior to the occurrence of the act, circumstances leading to the act, specific form of act, objective situation surrounding the act, and the sexual morality concept of the age.

[2] The crime of indecent act by compulsion is a crime to protect a person’s sexual freedom or the freedom of sexual self-determination, and cannot be deemed as a self-defensive crime for which the principal offender is established to commit the crime. Thus, the crime of indecent act by compulsion may be committed in the form of indirect principal crime which forcibly commits the victim by using a person who is not punished as a tool. Here, another person as a tool to realize the intent of indirect principal crime concerning indecent act by compulsion may include the victim. Thus, even in the case of indecent act by using the victim’s body as a tool, it may constitute an indirect principal crime of indecent act by compulsion

[1] Article 298 of the Criminal Act, Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse / [2] Articles 34(1) and 298 of the Criminal Act, Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse

[1] Supreme Court Decision 2001Do2417 Decided April 26, 2002 (Gong2002Sang, 1306) Supreme Court Decision 2012Do3893, 2012Do14, 2012Do83 Decided June 14, 2012

Defendant

Prosecutor

Seoul High Court Decision 2016No83 decided October 19, 2016

The guilty part of the judgment of the court below (including the acquittal part in the grounds) shall be reversed, and that part of the case shall be remanded to the Seoul High

The grounds of appeal are examined.

1. In the crime of indecent act by compulsion, indecent act means an act which objectively causes sexual humiliation or aversion to the general public and is contrary to good sexual moral sense, and thus infringing on the victim’s sexual freedom. Whether an act constitutes this shall 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 age (see Supreme Court Decision 2001Do2417, Apr. 26, 2002, etc.).

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

A. The Defendant received from the victims who came to know of smartphone-recording events, a photograph that revealed the body parts of the victim’s body, and threatened the victims by means of spreading the victims’ body pictures and personal information that had been previously transmitted unless they came to know of the victims’ personal information or personal information about their personal figures.

B. On May 3, 2015, the Defendant: (a) had Nonindicted 1, a victim Nonindicted 1, who was frighted by the Defendant’s intimidation, photographed his/her chest photograph, sexual organ photograph, and chest, taken the photographic image of his/her chest, together with the motion picture transmitted; and (b) had the victim Nonindicted 1 photographed his/her chest, his/her chest, his/her chest, his/her chest, or his/her vexic image, etc. taken seven times from the date and time to December 22, 2015, such as the list I (except No. 3) of the crime list in attached to the lower judgment.

C. In addition, around April 2014, the Defendant had Nonindicted 2, a victim Nonindicted 2, who was frighted by the Defendant’s intimidation, take photographs of clothes taken from the company’s toilet in front of face. The Defendant received such photographs, as indicated in Appendix II (except No. 5) of the lower judgment, and transmitted the pictures by having the victim Nonindicted 2 take pictures of b body photographs, the pictures containing bats, the bats, the pictures containing the bats, and the bats, the bats of the bats, and the bats of the bats, etc., once from the above date to December 25, 2015.

3. We examine the above facts in light of the legal principles as seen earlier.

A. The crime of indecent act by compulsion is a crime to protect a person’s sexual freedom or the freedom of sexual self-determination, and cannot be deemed to be a self-defensive crime in which the principal offender is established to commit the crime. Thus, the crime of indecent act by compulsion may be committed in the form of indirect principal crime which forcibly commits the victim by using other persons who are not punished as a tool. Here, it is reasonable to view that other persons may include the victim as a tool to realize the intent of indirect principal crime concerning indecent act by using the victim’s body. As such, even in the case of indecent act by using the victim’s body, it may constitute an indirect principal

B. If the defendant, by threatening the victims, forced them to photograph her body or clothes inevitably and forced them to capture them into or self-defens, etc., such act constitutes an infringement on the sexual freedom by using the victims' body as a tool, and there is sufficient room to regard it as an act that causes the general and average person to feel sexual humiliation or aversion and goes against good sexual morality.

C. Therefore, even based on the facts established by the court below, the above acts of the defendant during the defendant's act can be evaluated as realizing the crime of indecent act by force by using the victims, and it does not change even if the defendant did not directly perform such acts or did not directly contact the victims' body.

4. Nevertheless, the lower court acquitted the Defendant of all the charges on the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse and indecent act by compulsion on the sole ground that it is difficult to view that the Defendant’s act was sexual humiliation or aversion or infringement of sexual self-determination on the victim’s body at an equal level without considering whether the Defendant could be seen as realizing the crime of indecent act by compulsion by the victims.

The court below erred by misapprehending the legal principles on the establishment of the crime of indecent act by compulsion, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Meanwhile, among the judgment of the court below, the part concerning the facts charged in the primary charge cannot be maintained as they are, and the facts charged in the primary charge with the same body cannot be reversed. Furthermore, since the court below rendered a single sentence on the grounds that the part concerning the facts charged in the primary charge and the remaining facts charged in the primary charge are concurrent crimes under the former part of Article 37 of the Criminal Act, the part concerning the conviction cannot be reversed, and the part concerning the primary charge that is identical to the remaining facts charged in the primary charge cannot be reversed. Ultimately, the part concerning the conviction (including the part concerning the acquittal in the grounds of appeal) of the judgment

6. Therefore, the guilty portion of the judgment of the court below (including the acquittal portion in the reasoning) is reversed, and that part of 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 Park Sang-ok (Presiding Justice)