Defendant

Prosecutor

The number of punishment (prosecutions) and knives (public trials)

Attorney Kim Jae-sik (Korean)

Seoul Central District Court Decision 2014Ra3093 Decided October 31, 2014

1. The judgment of the court below is reversed.

2. The defendant shall be punished by a fine of one million won.

3. If the defendant fails to pay a fine, the defendant shall be confined in a workhouse for the period converted into one day.

4. The defendant shall be ordered to complete 24 hours a sexual assault treatment program.

5. An order to pay an amount equivalent to a fine provisionally;

1. The gist of grounds for appeal;

Since the defendant's act may be deemed to have infringed on the victim's sexual freedom, the defendant is established a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter referred to as the "Sexual Crimes Punishment Act").

2. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

On March 25, 2014, around 08:10 on March 25, 2014, the Defendant: (a) 2 subway lines 1112, the subway lines located in the Dongjak-gu Seoul Metropolitan Government Saridong 1112, was pushed down with the victim Nonindicted Party 1 (nick, 28 years old), etc. in the subway, and knee knee knee knee was posted to the part of the victim’s kneel; and (b) committed indecent act against the victim in a densely-populated public place

B. The judgment of the court below

The lower court acquitted the Defendant on the ground that it is difficult to deem that the Defendant committed an indecent act against the victim, even though it could be deemed that the Defendant had committed an indecent act against the victim with the intent to commit an indecent act, since the victim was unaware of the indecent act committed by the Defendant, it cannot be deemed that the victim’s sexual freedom was infringed, and therefore, it cannot be deemed that the

3. Determination

A. Ex officio determination

We examine the reasoning of Defendant’s appeal ex officio prior to the judgment on the grounds of appeal by the lower court. The Prosecutor applied the applicable law to “an attempted indecent act by compulsion” under the name of the crime, “Articles 300 and 298 of the Criminal Act” under the applicable law, and “the Defendant was unable to maintain the judgment of the lower court, as the charges were changed because the Defendant, at around 08:10 on March 25, 2014, when he moved from the subway No. 2, which was located in the subway No. 11112, the subway No. 1112, in the subway No. 2, Dongjak-gu, Seoul Metropolitan Government, was pushed back with kne, kne, kne, kne, and applied to the part on the part of the victim Nonindicted Party 1, etc. in the subway, and attempted to commit an indecent act on the part of the victim, but failed to recognize it,” and the judgment of the lower court became final and conclusive.

However, the prosecutor's assertion of misunderstanding the facts about the violation of the Sexual Violence Punishment Act (Indecent Acts at the public gathering place) is still subject to the judgment of this court, and this is examined.

B. Error of mistake

In general, in order to reach the conviction of the violation of the Sexual Violence Punishment Act, the act of the perpetrator does not necessarily seem to have the victim feel sexual humiliation or aversion, but is an act that may cause sexual humiliation or aversion to the general public objectively, and that an offender commits an act contrary to the good sexual morality concept against the subject. The specific reasons for such interpretation are as follows.

(1) The crime of rape and indecent act, including the crime of violation of the Sexual Violence Punishment Act, is not merely protecting sexual honor or subjective emotions, but also widely protecting sexual freedom, i.e., sexual self-determination. If a person becomes subject to another person’s sexual act against his/her will, even though he/she did not have a sense of sexual humiliation or aversion, his/her passive freedom from sexual act is already infringed, and the realization of the elements of the crime is at the completion stage.

she may lead to unreasonable consequences if the actual occurrence of a sense of sexual humiliation or aversion takes place as a requirement to decide whether or not the crime of violation of the Sexual Violence Punishment Act is committed. In other words, inasmuch as there is no provision on the punishment of attempted crimes, it is determined whether or not to punish an offender depending on whether or not the offender has been aware of the subjective and friendly appraisal or the previous stage of the occurrence or transfer of the crime. However, each person has different criteria for sexual appraisal, as well as in the case of this case, it may occur where it is impossible to properly grasp what kind of action has occurred to him/her, as in the case of this case. Accordingly, it is desirable to consider this as a critical factor to determine whether or not the offender has been punished, and to consider it as one of the important factors to determine whether or not the sexual freedom of the subject has been infringed.

Article 302 of the Criminal Act provides that the crime of indecent act against a minor or a person with mental disability who commits an indecent act shall be punished only for attempted crimes, if the actual occurrence of a victim’s sexual humiliation or aversion is considered as a requirement for a criminal intent, rather than for attempted crimes, if the victim’s sexual humiliation or aversion is omitted through a high level of deceptive scheme. Therefore, a consistent and reasonable conclusion is that the entire “crime of rape and indecent act,” including the crime of violation of the Sexual Violence Punishment Act, should not be considered as a requirement for a criminal intent.

In accordance with the foregoing legal doctrine, the Defendant’s act, namely, the Defendant’s act acknowledged in accordance with the evidence submitted by the Prosecutor, that is, the Defendant’s act was objectively committed against the victim’s her sexual organ, causing sexual humiliation or aversion to the general public and against the good sexual moral sense. Therefore, the Defendant’s act has already been committed against the violation of the Sexual Violence Punishment Act (Indecent Act at a public place). This conclusion does not change even if the victim did not feel a sense of sexual humiliation or aversion.

4. Conclusion

Thus, the prosecutor's appeal is well-grounded, and there is a ground for reversal ex officio as seen above, so it is reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

- As described in paragraph (1) of this Article.

1. Each legal statement of the lower court by Nonindicted 1 and Nonindicted 2

1. The police statement of Nonindicted Party 1

1. Letters of arrest;

1. Relevant legal provisions and choice of punishment with respect to the facts of crime;

Article 11 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

2. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

3. Order to complete programs;

Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

4. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

When a conviction on the facts of a crime, which is a sex offense subject to registration, becomes final and conclusive, the defendant is a person subject to registration of personal information under Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the relevant agency pursuant to Article 43

In light of the Defendant’s age, occupation, risk of repeating a crime, motive, method, consequence, seriousness of the crime, disclosure order or notification order, anticipated side effects and expected side effects of the Defendant’s entry, and the prevention of sexual crimes subject to registration that may be achieved therefrom, the effect of protecting the victims, etc., the Defendant shall not be ordered to disclose or notify his/her personal information pursuant to Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse.

Judges Hong Jin Lee (Presiding Judge)