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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal by defense counsel;
A. In the misapprehension of the legal principles, the Defendant, who is the spouse, misunderstanding of the facts or misunderstanding of the legal principles, led the other victim’s conspiracy because the victim returned home to the new wall under the influence of alcohol, and this cannot be viewed as an indecent act causing a sense of sexual shame, even though it can be seen as one form of violence between the husband and wife. The Defendant cannot be found to have committed an indecent act compelling the victim.
Even if there is a different view, it should be deemed that it was conducted with the implied and constructive consent of the victim, and thus, the illegality of the defendant's act is excluded.
Nevertheless, the lower court erred by misapprehending the legal doctrine on the crime of indecent act committed by mistake or coercion, thereby adversely affecting the conclusion of the judgment.
B. In light of the fact that the criminal defendant and the victim were legally married, and that the defendant has no record of criminal punishment, the sentence of the court below that sentenced a fine of 4 million won and an order to complete a sexual assault treatment program for 40 hours is too unreasonable.
2. Determination
A. In determining the misapprehension of the legal doctrine, an indecent act against the assertion of mistake of facts is objectively an act that 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 is so determined ought to be carefully determined by comprehensively taking into account the victim’s intent, gender, age, relationship before the offender and the injured person, circumstances leading to such act, specific manner of act, and the surrounding objective situation, sexual morality, etc.
In addition, there is no subjective motive or objective to stimulate sexual humiliation as a subjective element necessary for the establishment of the crime of indecent act by compulsion (see Supreme Court Decision 2013Do5856, Sept. 26, 2013, etc.). The lower court is not required to have a subjective motive or objective to stimulate sexual humiliation (see Supreme Court Decision 2013Do5