The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

The above fine shall not be paid by the defendant.

1. Summary of the grounds for appeal by the defendant: misunderstanding of facts (limited to subway platforms facing victims and not with intent to commit an indecent act) and unfair sentencing;

2. Determination on the grounds for appeal

A. A. In the trial of ex officio determination, the prosecutor applied for changes in indictment to change the part of the facts charged in the instant case “in the subway train, which is the place of public smuggling, from the subway platform,” to “in the subway platform, which is the place of public smuggling,” and this court permitted this, thereby changing the subject of the trial on this part. Therefore, the judgment of the court below was no longer maintained.

However, despite the above reasons for ex officio destruction, the defendant's assertion of misunderstanding of facts is still subject to the judgment of the court, and the above argument is examined below.

B. As to the mistake of facts, the crime of assault and threat is not separately required as a means of conduct, unlike the crime of general indecent act by force, with respect to “indecent act at a public place” under Article 11 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

Furthermore, “Indecent act” in this context means an act that causes a sense of sexual humiliation or aversion to the general public and is contrary to good sexual morality, which infringes on the victim’s sexual freedom or sexual self-determination. Whether it constitutes such an act ought to be determined carefully by comprehensively taking into account the victim’s intent and 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, and the surrounding objective situation and the sexual moral sense of that time.

In addition, the Criminal Act does not require a subjective motive or purpose to stimulate sexual humiliation as a subjective constituent element necessary for the establishment of the crime of indecent act by compulsion (see, e.g., Supreme Court Decision 2013Do5856, Sept. 26, 2013).