The meaning of “indecent act” and standard for determining whether an indecent act constitutes an indecent act / Whether a subjective motive or purpose should be required to stimulate, stimulate, and satisfy sexual desire besides intent as a subjective constituent element of the crime of indecent act by compulsion (negative)

Article 298 of the Criminal Act

Supreme Court Decision 2005Do6791 Decided January 13, 2006 (Gong2006Sang, 286) Supreme Court Decision 2013Do5856 Decided September 26, 2013 (Gong2013Ha, 2046) Supreme Court Decision 2014Do17879 Decided July 23, 2015

Defendant

Prosecutor

Law Firm Barun Law LLC, Attorneys Lee Dong-pop et al.

Seoul Central District Court Decision 2019No2513 Decided May 29, 2020

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. “Indecent act” means an act that causes a sense of sexual humiliation or aversion to the general public and goes against good sexual morality, and thus constitutes an infringement on the victim’s sexual freedom. Determination of whether an act constitutes such act ought to be made with careful consideration of the victim’s intent, gender, age, relationship before the offender and the victim, circumstances leading to the act, specific manner of act, and the surrounding objective situation and sexual morality concept, etc. Furthermore, subjective constituent elements necessary for the establishment of the crime of indecent act by compulsion are sufficient only by intention, and do not require any subjective motive or objective to stimulate, arouse, and satisfy sexual humiliation (see Supreme Court Decision 2014Do17879, Jul. 23, 2015).

2. Summary of the facts charged

On May 3, 2018, at around 18:45, the Defendant: (a) talked with the victim (the 27 years of age) who is an employee of his/her representative director at the Gangnam-gu Seoul restaurant, "○○○○" (the 27 years of age) and talked about the victim's marriage, etc., the Defendant she satisfyed the victim's head with his/her left arms and made the victim's head contact the Defendant's chest and satisfyd the Defendant's chest and forced the victim to commit an indecent act in his/her hand during another conversation. After that, the Defendant satisfyed the victim's head by hand so that he/she may contact the two sides of the victim, and forced the victim to commit an indecent act."

3. The judgment of the court below

In full view of the following circumstances, the lower court determined that it was difficult to view the Defendant’s act as an indecent act by compulsion.

A. The restaurant recorded in the facts charged was a place open to the public in the form of several tables in the Chinese house, and there was two other employees of the defendant company, two other employees of the defendant company, and representatives and employees of the business partners in the place.

B. The physical part of the victim’s body contacted by the defendant is the head or shoulder of the victim, and it is difficult to regard the physical part itself as a specific part of the victim’s body related to social norms.

C. It is difficult to view the Defendant’s act as an act of having sexual intent on the grounds that the Defendant’s act was a flaging of the victim’s head by breaking his head or flaging his head and flaging his head.

D. The Defendant, while negotiating an annual salary with the victim, performed the same behavior as the stated in the facts charged by the victim while drinking alcohol on the vehicle that the victim had the possibility of leaving his/her job, and did not combine his/her sexual words and actions.

E. Although the victim made a statement to the effect that he/she may feel sexual humiliation due to the Defendant’s act, he/she also made a statement to the effect that he/she saw the humiliation, humiliation, or displeasure. Thus, the victim cannot be seen as having made a statement by clearly seeing the Defendant’s abusive and insulting speech and behavior and making the victim feel sexual humiliation separate from a sense of shame, sense of shame, and sense of shame.

F. Even if a single person, who was present at the scene, expressed the Defendant’s behavior, such as “Isle,” etc., it cannot be deemed that the said expression is a serious evaluation with the view to a sex offender’s crime of indecent act by compulsion.

4. Judgment of the Supreme Court

However, we cannot agree with the above determination by the court below for the following reasons.

A. The following facts are acknowledged according to the evidence duly adopted and examined by the court below.

1) At the time of the instant case, the Defendant is a married female under 52 years of age, and the victim is an unmarried female under 26 years of age, and the Defendant and the victim were the representatives and employees of the company.

2) The Defendant asked the victim and other female employees who were present at the time to the effect that “I would have been married.” The Defendant stated that “I would not marry when her friend is divorced, I would not marry.” The victim and other female employees pointed out the Defendant’s speech at the place where the Defendant would be sentenced to death, and that “I would like to receive a apology as well as action. I think I think I will be the Defendant’s consciousness reflected in the awareness.”

3) The Defendant, as described in the facts charged, carried out the horses and bathing, etc. as above, and carried out the act of a victim’s head by saving the victim’s head and head into the Defendant’s chest with his own left arms, and allowing the victim’s head to contact the Defendant’s chest, and continued to engage in such conduct as continuing to take a bath after the victim’s head knife and shake the victim’s head.

4) As to the Defendant’s above behavior, the Customer’s representative told that the Defendant’s above behavior “Isle, Isle, Isle.,” and the Defendant’s behavior continued thereafter, the Defendant’s behavior was eventually finished by breaking the Defendant’s sound on the job.

5) With respect to the situation and appraisal at the time, the victim stated that “I am hyth and hyth like hyth and hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyst hyst hyst hyst hyst hyst hyst hyst hyst hyst hyth hyst hyst, and hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyth hyst h

B. Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendant’s act constitutes an act that causes sexual humiliation or aversion to the general public objectively and goes against good sexual morality, thereby infringing on the victim’s sexual freedom. Accordingly, the Defendant’s act constitutes “indecent act” as referred to in the crime of indecent act by compulsion.

1) Clearly, in light of the gender, age, relationship, etc. of the Defendant and the victim, the Defendant’s behavior is an act contrary to the good sexual moral sense. In the case of assault and indecent act at the same time, it is open to the public and it is difficult to view that there was a person who sits in company with the victim as an important factor to determine

2) In addition, it cannot be deemed that there is an essential difference between the body part and the body part in the indecent act against women (Supreme Court Decision 2004Do52 Decided April 16, 2004) and the first act of the defendant, the part of the body part of the defendant and the victim was contacted, and the head of the victim contacted the chest of the defendant, which may cause sexual humiliation to the general public objectively in light of the contact part and method.

3) In light of the statement that the victim et al. was married before and after the Defendant’s act of committing the offense, namely, whether the victim et al. was married, and the victim et al. and the contents of the statement that the victim et al. should al. al. n kn kn kn kn kn kn kn kn kn kn kn kn kn kn kn kn kn kn kn kn kn kn n

4) The victim made a clear statement that the Defendant’s repeated acts caused sexual humiliation. The victim used specific expressions that indicate a sense of sexual humiliation at the time, and made it clear that he/she saw that he/she would feel sexual humiliation. The victim’s appraisal constitutes sexual humiliation recognized by social norms.

5) The phrase “hurbly,” the representative of the Customer, who used the Defendant’s act, cannot be deemed as a legal assessment of the nature of the crime of indecent act by compulsion, which means that the Defendant’s act was perceived as an act that causes a sense of sexual humiliation and goes against good sexual morality.

C. Furthermore, in light of the aforementioned behavior and the circumstances at the time, the Defendant’s intentional act of indecent act is also acknowledged. Even if the Defendant did not have any subjective motive or purpose, such as stimulating sexual desire, or there was any motive attributable to the intent of the victim to prevent the victim from leaving his/her job, it does not interfere with the Defendant’s intentional act.

D. Nevertheless, the lower court reversed the first instance judgment convicting the Defendant of the facts charged on the grounds that it is difficult to deem the Defendant’s act constituted an indecent act in the crime of indecent act by compulsion, and sentenced the Defendant not guilty. In so determining, the lower court erred by misapprehending the legal doctrine on “indecent act” in the crime of indecent act by compulsion, thereby adversely

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)