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The defendant's appeal is dismissed.
Reasons
Summary of Grounds for Appeal
A. misunderstanding of facts or misunderstanding of legal principles with a view to inducing sexual interest of the victim prior to the victim's sexual intercourse as the husband and wife, the defendant was her chest and her mouth, and the victim respondeded to this. Since the victim expressed his/her intention of refusal and subsequently suspended sexual behavior, there was no intention to commit an indecent act, not by force, but by indecent act.
B. The sentence imposed by the lower court on the grounds of unreasonable sentencing (5 million won of fine) is too unreasonable.
2. Determination
A. 1) Determination of mistake of facts or misapprehension of legal principles on the assertion of mistake of facts: (a) in a case where a marital relationship has been broken down between husband and wife as well as where the marital relationship is substantially maintained, the crime of indecent act by compulsion is established in a case where the husband committed assault or intimidation to the extent that it would make it impossible or considerably difficult for the husband to resist against the victim; (b) but whether the assault or intimidation against the husband’s wife would cause a serious difficulty in making it impossible or considerably difficult for the husband to resist against the victim; (c) on the premise that the State’s intervention in the sexual life between the husband and the wife should be restricted to the maximum extent possible from the perspective of maintaining the family; (d) the content and degree of the assault or intimidation were in essence infringed upon the wife’s sexual self-determination; (e) the circumstances leading up to the husband’s exercise of tangible power; (e) the husband’s form of marriage and the husband’s ordinary character and behavior at the time of sexual intercourse; and (e) the circumstances subsequent examination of evidence duly adopted by the lower court.
① On April 25, 2014, the Defendant and the aggrieved person are married couple’s common life from around that time, but they are married in a de facto marriage relationship that does not report marriage.
(2) The defendant shall conflict with the victim.