[1] The meaning of "indecent act" among the elements of the crime of indecent act by compulsion and its standard

[2] The degree and standard of determination of "Assault and intimidation" among the elements of the crime of indecent act by compulsion

[3] In a case where the defendant was prosecuted for indecent act by compulsion of sexual intercourse with the victim Gap (the 48-year old age), by putting her part out of her will, the case holding that the court below erred in the misapprehension of legal principles as to indecent act by compulsion of indecent act by compulsion, on the ground that the mere her sexual organ cannot be seen as having committed an indecent act by assault or intimidation, even though she merely shown her sexual organ out of her will, considering the overall circumstances, and it cannot be seen as having committed an indecent

[1] Article 298 of the Criminal Act prescribes that “a person who commits an indecent act against another person by violence or intimidation” shall be punishable as an indecent act by force. However, the crime of indecent act by force is a crime infringing on the individual’s legal interest, which is an individual’s sexual freedom, and is merely an act which causes a sense of sexual humiliation or aversion to the general public and contrary to good sexual morality, and thus, it should not be sufficient to infringe on the victim’s freedom of sexual self-determination. Therefore, “obscenity act” (or an act stipulated in Article 1 subparag. 41 of the Punishment of Minor Offenses Act regarding excessive exposure) stipulated in Article 245 of the Criminal Act for the purpose of protecting the general social legal interest, such as sound sexual morals, was committed against a specific person. More than anything else, it cannot be said that the act of indecent act is an infringement on the victim’s sexual freedom. Whether it constitutes such act should be determined by comprehensively taking into account the victim’s intent, gender, age, relationship between the perpetrator and the victim, specific circumstances leading to the act, etc.

[2] The crime of indecent act by compulsion is established by committing an indecent act against another person by resorting to violence or intimidation, and such assault or intimidation is required to be such a degree as to make it difficult for the victim to resist. Whether such assault or intimidation was likely to make it difficult for the victim to resist the victim should be determined by comprehensively taking into account all the circumstances such as the content and degree of the assault or intimidation, the circumstances leading up to the exercise of force, relationship with the victim, and circumstances at the time of the indecent act and the subsequent circumstances.

[3] In a case where the Defendant was prosecuted for indecent act by compulsion of sexual intercourse with the victim Gap (the age of 48), the case holding that the court below erred in the misapprehension of legal principles as to indecent act by indecent act by indecent act by indecent act by indecent act in light of all the circumstances, including the following: (a) the Defendant’s sexual and age, the background leading to the Defendant’s act; (b) no physical contact with the victim; (c) the place of the act was open to the public as a road with frequent traffic of people and vehicles; (d) the Defendant’s bath is not having sexual character; and (e) there is no circumstance to deem that the Defendant’s sexual act was infringed upon the freedom of his sexual decision; and (e) there is no circumstance to deem that the Defendant’s sexual act was committed by indecent act by assault or intimidation; (b) on the contrary, the judgment below which found the Defendant guilty on the contrary ground that the Defendant

[1] Articles 245 and 298 of the Criminal Act, Article 1 subparagraph 41 of the Punishment of Minor Offenses Act (wholly amended by Act No. 11401, Mar. 21, 2012) / [2] Article 298 of the Criminal Act / [3] Article 298 of the Criminal Act

[1] Supreme Court Decision 2001Do2417 Decided April 26, 2002 (Gong2002Sang, 1306) Supreme Court Decision 2007Do10050 Decided March 13, 2008, Supreme Court Decision 2009Do13716 Decided February 25, 2010 / [2] Supreme Court Decision 2006Do5979 Decided January 25, 2007 (Gong2007Sang, 392)

Defendant

Defendant

Busan District Court Decision 2011No758 Decided June 24, 2011

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. Article 298 of the Criminal Act prescribes that “a person who, through violence or intimidation, commits an indecent act against another person” shall be punishable as a crime of indecent act by compulsion. However, the crime of indecent act by compulsion is a crime that infringes on the individual’s legal interest, namely, individual’s sexual freedom, and thus, constitutes an act of causing sexual humiliation or aversion to the general public and contrary to good sexual morality, and thus, is insufficient, and thus, it should infringe on the victim’s freedom of sexual self-determination.

Therefore, the crime of obscenity under Article 245 of the Criminal Act (or acts stipulated in Article 1 subparagraph 41 of the so-called Punishment of Minor Offenses Act with respect to excessive exposure) with the purpose of protecting a sound social legal interest, cannot necessarily be said to be an “indecent act against a specific person.” Above all, the problem must be determined by comprehensively taking into account the victim’s intent, gender, and age, relationship between the offender and the victim, circumstances leading to the act, specific form of act, and objective situation (see, e.g., Supreme Court Decision 2009Do13716, Feb. 25, 2010).

In addition, the crime of indecent act by compulsion is established by an indecent act by resorting to violence or intimidation, and such assault or intimidation is required to be such an extent that it makes it difficult to resist the victim. Whether such assault or threat was likely to make it difficult to resist the victim should be determined by comprehensively taking into account all the circumstances such as the content and degree of the assault or threat, the background leading up to the exercise of force, the relationship with the victim, and the circumstances at the time of the indecent act and the subsequent circumstances (see Supreme Court Decision 2006Do5979, Jan. 25, 2007, etc.).

2. After comprehensively taking account of the adopted evidence, the lower court determined that the Defendant’s act of presenting his sexual organ to the victim constitutes an indecent act by compulsion, on the ground that it constitutes an indecent act contrary to good sexual morality, and constitutes an indecent act infringing on the victim’s sexual freedom, on the ground that the act of presenting his sexual organ to the general public constitutes an indecent act contrary to good sexual morality.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the records, the following circumstances are revealed. ① The victim was a woman of 48 years of age, operated “○○○○○○○○○○○○○” branch on the second floor of the building located in the building located in the Dongdong-gu, Busan (number omitted) in Busan, and there was a dispute with the Nonindicted Party operating the restaurant on the first floor of the building. ② The Defendant, while drinking in the restaurant, talked about the dispute with the victim by the Nonindicted Party, who was known to ordinary level of view while drinking in the restaurant, and masced the victim. ③ The victim her horse was parked on the road located in front of the above restaurant. ③ The victim her vehicle parked in the front of the above restaurant, and the Defendant her walked the victim with his/her desire to take a walk as in the facts charged while driving ahead of the victim’s rear, and the Defendant her walked off the vehicle with his/her desire as in the indictment. ④ At the same time, the restaurant and convenience store was around 8:00 a day.

In the above context, the victim’s gender and age, the background leading up to the instant act, and the Defendant sent his sexual organ at a certain distance, and did not have any physical contact with the victim. The place of the instant act was open to the public as the road located in the office where the victim parked the vehicle, and the victim was sufficiently able to seek the victim’s assistance, if necessary, from the point of view that he could be easily deprived of the victim’s act by leaving the visible line from the Defendant. The Defendant did not leave the victim as the place of the said act, but rather leave the victim as the victim’s vehicle, and led to the said act. The motive leading up to the crime of intimidation was not related to “indecent act” because the Defendant committed against the victim did not have sexual character, and there was no other circumstance to deem that the victim violated his freedom of sexual decision, considering all other circumstances, it cannot be seen that the Defendant exceeded his own sexual organ or sexual harassment cannot be objectively seen as an “indecent act.”

Nevertheless, solely based on its reasoning, the lower court erred by misapprehending the legal doctrine on indecent act in the crime of indecent act by compulsion, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are reasonable.

4. Therefore, among the judgment below, the part of the judgment below should be reversed. However, since the court below rendered a single punishment by deeming that this part of the judgment below convicts the obstruction of performance of official duties and the concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below

5. Therefore, the lower judgment is reversed, and 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.

Justices Lee Sang-hoon (Presiding Justice)