2019 Highest 797 Indecent Act by compulsion

A

Kim Jong-Gyeong (Court Prosecution) and Park Jong-hee (Court of Public Trial)

Attorney Shin Jin-Na (National Assembly)

September 4, 2019

The defendant shall be innocent.

1. Facts charged;

(a) Indecent acts by compulsion against the complainant B;

피고인은 2018. 12. 23. 00:40분경 부산 해운대구 C 지하1층 D노래연습장 입구에서 고소인에게 "너희들 몇 살이냐, 미성년자는 여기 오면 안 된다"라고 하면서 고소인의 한쪽 팔 부위 옷을 강하게 끌어당기며 1회 끌어안고, 고소인이 놓으라고 하자 배를 튕기듯히 밀어내는 과정에서 피고인의 성기 부위가 고소인의 배 부위에 닿게하는 방법으로 추행하였다.

(b) Indecent acts by compulsion against complainant E;

피고인은 가.항 기재 일시경 같은 장소에서, 고소인이 "저희 미성년자 아니니깐 하지 마세요"라며 피고인을 제지하자 고소인의 한쪽 팔 부위 옷을 붙잡고 고소인이 피고인의 손을 뿌리치며 "미성년자 아니니깐 나와주세요"라고 하자 고소인의 양팔 부위 옷을 잡아 끌어당기며 1회 끌어안고, 고소인이 놓으라고 하자 배를 튕기듯이 하며 고소인을 밀어내는 과정에서 피고인의 성기부위가 고소인의 배 부위에 닿게하는 방법으로 추행하였다.

2. Determination

A. The burden of proving the facts charged in a criminal trial is to be borne by a public prosecutor, and the conviction of guilt is to be based on the evidence of probative value, which makes a judge not having any reasonable doubt as to whether the facts charged are true. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant, it shall be determined with the benefit of the defendant (see, e.g., Supreme Court Decision 2010Do9633, Nov. 1, 2010).

B. The crime of indecent act by compulsion 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 an indecent act. In an objective view, an indecent act is 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 constitutes such an act shall be determined by comprehensively taking into account the victim’s intent, gender, age, relationship before the actor and the victim, circumstances leading to the act, specific form of act, objective situation surrounding the act, and sexual moral sense in the age (see, e.g., Supreme Court Decisions 2001Do2417, Apr. 26, 2002; 2015Do6980, 2015Mo2524, Sept. 10, 2015).

C. In full view of the following facts and circumstances acknowledged in accordance with the evidence duly adopted and examined by the court, it is difficult to conclude that the evidence submitted by the prosecutor alone alone proves that the defendant committed an indecent act against the complainants intentionally by indecent act by indecent act by indecent act by indecent act under Article 260 of the Criminal Act (which can be seen as “indecent act committed by indecent act by indecent act by indecent act by indecent act under Article 260 of the Criminal Act”).

1) At the time of the instant case, the Defendant and the complainant were likely to have been in place with an access to singing (one-five seconds). The Defendant appears to have been aware that the complainant was a minor and prevented him from having access to singing.

2) Even according to the statement of the complainants, the Defendant did not spawn the complainants, but appears to have been net and simple in the process of being sealed and spawned. However, it cannot be readily concluded that the Defendant’s intent to attract the complainants to spawn the clothes of the complainants.

3) 이 사건 공소사실 자체로도 피고인이 고소인들을 밀어내는 과정에서 피고인의 성기 부위가 고소인들의 배 부위에 닿았다는 것이고, 고소인들의 진술만으로는 피고인이 고소인들의 배에 성기를 부비거나 닿게 하기 위해 배를 튕긴 것으로 단정할 수 없다(피고인이 자신의 성기가 고소인들의 신체에 닿는 것을 미필적이나마 용인했다고 단정하기 어려움).

4) In full view of the statements by the complainants and the developments leading up to the occurrence of the case, it appears that the defendant and the complainants had been faced with each other during a short period of time (the process in which the defendant was faced with the complainants) and the body of the defendant and the complainants, and there seems to be no special opportunity for the defendant to feel that he had committed an indecent act against the complainants in a timely manner in front of his own behaviors (the words at the time when the defendant was committed to the complainants are also known to the extent that 'minor' is not known to the victim).

3. Conclusion

Thus, since the facts charged in this case constitute a case where there is no proof of facts constituting a crime, the court rendered a judgment of innocence under the latter part of Article 325 of the Criminal Procedure Act, and did not render a judgment of innocence public notice under the proviso of Article 58

Judges Kim Dong-dong