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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. The Defendant’s misunderstanding of facts is found to have tried to see the mind of a person with whom he flicked, and again humping the reporter, and does not constitute an objective and subjective element of indecent act.
Nevertheless, the judgment of the court below which convicted of the indecent act by force is erroneous.
B. The punishment sentenced by the lower court (such as a penalty of five million won) is too unreasonable.
2. Determination
A. In the event that the appellate court’s judgment on the assertion of factual mistake seeks to reverse the determination of the first instance court after re-evaluation of the determination of the first instance court, even though there is no new objective reason that may affect the formation of conviction in the course of the trial, there is a reasonable ground to deem that the determination of evidence for the first instance was clearly erroneous, or that the argument leading to the acknowledgement of facts is considerably unfair because it is contrary to logical and empirical rules, etc. Furthermore, without such exceptional circumstance, the appellate court’s judgment on the finding of facts in the first instance should not be reversed without permission (Supreme Court Decision 2016Do18031 Decided March 22, 2017). The Defendant asserted to the same effect as the above grounds for appeal at the lower court, and the lower court, on which the victim of November 1, 2018, 201 is a hedging against the Defendant.
In light of the fact that the defendant has found brupty in the residence of the victim several times, and the victim has clearly expressed his/her intention of refusal by making a report, etc., however, he/she has recovered again in the residence of the victim on the day of the case, and unilaterally tried to use the shoulder of the victim, and that the defendant's act of using the shoulder of the victim against the victim's will is against the victim's will and thus, it may infringe the victim's sexual freedom as an exercise of force and be evaluated as an indecent act in the perspective of the general public as well as an indecent act in the perspective of the general public.