(영문) 대법원 2014.9.25.선고 2013도7838 판결

The part of the lower judgment regarding the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse on October 17, 2012 is reversed, and that part of the case is remanded to the Daejeon High Court.

Reasons

The grounds of appeal are examined.

1. Of the facts charged in the instant case, the summary of the facts charged as to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act by compulsion) on October 17, 2012 is as follows: (a) the Defendant boarded the bus No. 604 depending on the victim on the passenger in the Yong-dong, Seo-gu, Daejeon at around 08:08 on October 17, 2012; and (b) the Defendant committed an indecent act by coercioning the victim’s chest by inserting his hand into the victim’s school uniforms blurf, and by forcing him to commit an indecent act by force.

2. The lower court acknowledged the following facts: (a) the victim made a statement to her mother that she is continuously sexual indecent act at the city bus: (b) the victim’s mother and her mother were on board the city bus with the victim to catch the Defendant on October 17, 2012, and the victim’s mother and her mother were on board the Defendant on the same day; (c) around 08:08 on the same day her hand, the Defendant took her hand into the victim’s school uniforms and sent her chest into the victim’s school uniforms; (d) the victim’s mother and her mother are on board the bus in addition to the victim’s mother and her mother, and there were many people on board the bus at the time, and (6) the Defendant did not engage in any speech or behavior against the victim until the victim’s mother ends; and (6) on the premise that there is no evidence to prove that an indecent act constitutes an indecent act against the victim’s intent to exercise the victim’s force on the ground that it does not constitute a type of indecent act.

Furthermore, the lower court dismissed the prosecution on this part of the facts charged pursuant to Article 327 subparagraph 6 of the Criminal Procedure Act on the ground that the facts charged constitute a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts at Open Place) within the scope recognized as identical to the facts charged, and thus, cannot be prosecuted against the victim’s express intent pursuant to the proviso to Article 16 of the Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 12, 2012).

3. However, the lower court’s determination is difficult to accept for the following reasons.

The crime of indecent act by compulsion includes not only cases where an indecent act is committed after the other party makes it difficult to resist by resorting to violence or intimidation, but also cases where the act of assault itself is deemed an indecent act. In such a case, an indecent act does not necessarily mean that the other party’s intent is at risk of suppressing. In addition, an indecent act objectively constitutes an act that causes sexual humiliation or aversion to the general public and is contrary to good sexual morality and thus infringing on the victim’s sexual freedom. Whether it constitutes such an act should 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 the act, objective situation surrounding the act, and sexual morality of the time (see, e.g., Supreme Court Decisions 202Do4, 201Do2417, Jun. 14, 2012; 2012Do3893, 2012Do14283, Jun. 14, 2012).

According to the reasoning of the judgment of the court below, the defendant was able to say that he was injured by the victim who was booming around the city bus with his hand, put his fingers into the victim's school uniforms boom, and added the victim's chests. In light of the relation between the defendant and the victim recognized in the records, the circumstances and circumstances leading to the act, etc., at the time of the defendant's act, the defendant was aboard the bus as well as multiple passengers, and the defendant did not engage in any speech or behavior other than driving the victim's chest, such act can be deemed as an exercise of force that was committed against the victim's will and thus, it may infringe the victim's sexual freedom as well as an indecent act from the perspective of the general public. Thus, in light of the above legal principles, in light of the above, it constitutes a case where the act of assault itself is recognized as an indecent act and thus, it can be established as a crime of indecent act by force.

Nevertheless, the court below held that it is difficult to see that the defendant exercised physical force against the victim's will and that this part of the facts charged constitute a case where there is no proof of criminal facts. Thus, the court below erred by misapprehending the legal principles on assault in indecent act by compulsion, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Conclusion

Therefore, the part of the lower judgment regarding the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse as of October 17, 2012 is reversed, and that part of 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.