[1] The form and degree of “indecent act” and the meaning and standard of determination of “indecent act” in the crime of indecent act by compulsion

[2] The case holding that in a case where the defendant was prosecuted for violating the Act on the Protection of Children and Juveniles against Sexual Abuse on the ground that he she saw the victim Gap who scam from the bus while drinking and drinking alcohol at night, scam and scam followed by wearing a scam, and attempted to scam close to the open area, but Gap scamddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

[1] The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by means of violence or intimidation, but also the case where the act of assault itself is recognized as an indecent act. The assault in this case does not necessarily require to the extent that the other party’s intent is threatened. The act of indecent act objectively refers to an act that causes sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus infringes on the victim’s sexual freedom. Whether it constitutes it ought to be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship between the perpetrator and the victim prior to the act, circumstances leading to the act, specific form of act, objective situation, and sexual morality of the times.

In addition, the crime of attempted indecent act by indecent act is established when the act of indecent act was commenced by intentionally committing an indecent act against the will of the other party, that is, the act of assault, but did not reach the result of the indecent act. This legal doctrine likewise applies to the so-called “Indecent act by indecent act” in which the act of assault itself is recognized

[2] The case holding that in a case where the defendant was prosecuted for violating the Act on the Protection of Children and Juveniles against Sexual Abuse on the ground that he/she saw the victim Gap (the victim 17 years of age), saw the victim Gap (the victim 17 years of age), worn the marina, and tried to see him/her access to the outer area without any human body, but he/she saw him/herself as a sounder for a few seconds in his/her own state, and she saw her back again, he/she was prosecuted for a violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, taking into account the relationship with the defendant, Gap's age and intention, situation leading to his/her act, and the influence of Gap's response and behavior after his/her act on Gap, the defendant can be found to have committed an indecent act again following his/her indecent act to commit an indecent act, and since the defendant's approach to Gap's own body constitutes an indecent act against Gap's own sexual body's own body and thus, the defendant's act constitutes an indecent act against Gap's will.

[1] Article 298 of the Criminal Act / [2] Article 298 of the Criminal Act, Article 7 (3) and (6) of the Act on the Protection of Children and Juveniles against Sexual Abuse

[1] Supreme Court Decision 2001Do2417 Decided April 26, 2002 (Gong2002Sang, 1306) Supreme Court Decision 2012Do3893, 2012Do14, 2012Do83 Decided June 14, 2012

Defendant-Probation Order Claimer

Defendant-Probation Order Claimer and Prosecutor

Law Firm Anyang, Attorneys Kang Young-chul et al.

Seoul High Court Decision 2015No226, 2015Da105 decided April 24, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Defendant case

A. As to the Prosecutor’s Grounds of Appeal

(1) The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by means of violence or intimidation, but also the case where the act of assault itself is deemed to be an indecent act. The assault in this case does not necessarily require to the extent that the other party’s intent is threatened. The act of indecent act objectively refers to an act that causes sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus infringes on the victim’s sexual freedom. Whether it constitutes such act ought to be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship between the perpetrator and the victim prior to the occurrence of the act, circumstances leading to the act, specific form of act, objective situation, and sexual morality at that time (see Supreme Court Decision 201Do2417, Apr. 26, 2002, etc.).

In addition, the crime of attempted indecent act by indecent act is established in a case where the act of indecent act was committed by intentionally committing an indecent act against the other party’s will, i.e., the use of force against the other party’s will and the result of the indecent act does not reach the result of the indecent act. This legal doctrine likewise applies to the so-called

(2) According to the reasoning of the first instance court and the lower judgment as well as the evidence duly admitted, the following facts can be revealed.

(A) On March 25, 2014, the Defendant and the person requesting a probation order (hereinafter “Defendant”) found the victim (the 17-year age), who walked from the bus while drinking the mixed person and drinking the 39-way route from the dormitory at the workplace and driving the bus at the Handoo-si in luminous-si, and followed the victim at a level of 200 meters with wearing the Mack.

(B) The Defendant, when there was no human being and out-of-the-counter place, tried to spare the victim by approaching the victim at approximately 1m, and sparing the two arms. However, the victim slicked the slick, who saw the slick, and slicked the victim again for a few seconds.

(3) We examine the above facts in light of the legal principles as seen earlier.

Considering the relationship between the defendant and the victim, the age and intention of the victim, the process and situation leading up to the above act, the response of the victim after the above act and the influence of the victim, etc., the defendant seems to be followed to commit an indecent act. Thus, the defendant's act of causing sexual humiliation or aversion to the public and infringing on the victim's sexual freedom by approaching the victim. Thus, the defendant's act of causing sexual humiliation or aversion to the public and infringing on the victim's sexual moral moral sense in itself constitutes an act of infringing on the victim's sexual freedom. Thus, even if the defendant's arms did not contact the victim's body, it is reasonable to view that the act of the defendant's arms to use the victim's body after the victim's height constitutes an act of assault against the victim's will, and at that time, the act of assaulting the victim's body constitutes an act of assault against the victim's will, and thus, it is reasonable to deem that the victim's attempted indecent act constitutes an attempted indecent act against the victim's body.

(4) Nevertheless, the lower court reversed the first instance judgment convicting the Defendant of the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, which is the crime of attempted indecent act by force against children and juveniles, among the facts charged in the instant case, and acquitted the Defendant on the part of the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to so-called "indecent act" and its commencement, etc., or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error

B. As to the Defendant’s appeal

The Defendant did not submit an appellate brief within the statutory period, and did not state the grounds for appeal in the petition of appeal.

C. Scope of reversal

As seen earlier, the part of the judgment of the court below which acquitted the defendant case should be reversed. Since the part of the judgment of the court below is concurrent crimes with the remaining guilty part under the former part of Article 37 of the Criminal Act, a single sentence should be sentenced to the whole of the judgment of the court below, the part of

2. As to the case of probation order claim

As long as a prosecutor has filed an appeal against the acquittal portion of the defendant's case among the judgment below, it is deemed that an appeal has been filed against the judgment on the request for probation order in accordance with Articles 21-8 and 9 (8) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders.

Although there are no grounds for appeal as to the claim for probation order, and there is no grounds for appeal as to the grounds for appeal. However, where the judgment of the court below as to the acquittal portion of the defendant's case is unlawful and the part of the judgment of the court below reversed the whole part of the defendant's case, the part concerning the claim for probation order which should be examined together with the judgment of the court below

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)