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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Although the Defendant’s act did not make it difficult to resist the victim’s resistance, it does not constitute assault in the crime of indecent act by compulsion, the lower court erred by misapprehending the legal principles or erroneous determination of facts, and the lower court’s sentence (2 million won of fine, 16 hours of order to complete program) is too unreasonable.
B. The Prosecutor’s sentence of the lower court is too unfortunate and unreasonable.
2. Determination:
A. The crime of indecent act by compulsion of mistake and misapprehension of legal principles includes not only cases where an indecent act is committed after the other party makes it difficult to resist by means of assault or intimidation, but also cases where the act of assault itself is deemed to be an indecent act. In such a case, insofar as the assault does not necessarily require the degree of suppressing the other party’s intention, and the exercise of force against the other party’s will is exercised, the force is regardless of its strength.
An indecent act objectively causes sexual humiliation or aversion to the general public and is an act contrary to good sexual moral sense, and thus infringing on the victim’s sexual freedom. Whether it constitutes such an act shall be determined with careful consideration of the victim’s intent, gender, age, relationship between the perpetrator and the victim prior to such act, circumstances leading to such act, specific form of act, objective situation in the surroundings, sexual morality, etc.
(See Supreme Court Decision 2012Do3893, 2012Do14, 2012Do83, Jun. 14, 2012, etc.). The Defendant followed a victim who was living alone at night and met the victim’s body by inserting his/her hand under the part of the victim himself/herself. As such, the Defendant met the victim’s form of such act, the relationship between the Defendant and the victim, the age and intent of the victim, the circumstance leading to the said act, the situation leading to the said act, the victim’s response after the said act, and the impact on the victim.