The meaning of indecent act in the crime of indecent act by compulsion

In the crime of indecent act by compulsion, an indecent act is not only an indecent act after the other party makes it difficult to resist by means of assault or intimidation, but also an indecent act itself is deemed an indecent act. Thus, in this case, an indecent act does not require that the other party’s intention is to be at the degree of suppressing, and even if there is the exercise of tangible force against the other party’s will, regardless of its force, so long as it does not require that the assault is at least to suppress the other

Article 298 of the Criminal Act

Defendant 1 and one other

Prosecutor

Attorney Jeon Byung-il

Seoul High Court Decision 82No2069 delivered on October 22, 1982

All appeals are dismissed.

The prosecutor's grounds of appeal are examined.

1. Part of the crime of indecent act by compulsion against Defendant 1

According to the reasoning of the judgment of the court below, with respect to the facts charged by indecent act by compulsion that the above defendant had been forced to use the victim's arms and forcedly forced to join two times, the court below held that the above defendant's possession of the victim is recognized, but the assault and intimidation in the crime of indecent act by compulsion should be sufficient to suppress the other party's intent, and there is no evidence to prove that there was such assault and intimidation, and there is no other evidence to prove that there was such assault and intimidation. Accordingly, the above facts charged result in the crime of indecent act by indecent act by indecent act by indecent act by indecent act by compulsion, the court below judged that the crime was committed when there is no evidence to prove the crime, and sentenced the defendant not guilty.

However, in the crime of indecent act by assault or intimidation, the act of indecent act on another person is not limited to the case where an indecent act is committed after the other party makes it difficult to resist by means of assault or intimidation, but it also includes the case where the act of assault itself is recognized as an indecent act. In the following case, as long as there is no need to suppress the other party’s intention, it should be viewed that there is a force against the other party’s will, regardless of its power, so long as there is a tangible force against the other party’s will, the act of assault or intimidation should be viewed as an indecent act.

The judgment of the court below, on the premise that assault in the crime of indecent act by compulsion must be such to the extent that the other party’s will is to be prevented, is unlawful in the misapprehension of the legal principles as to the above crime. However, according to the records and reasoning of the court below, the so-called “the above defendant’s original testimony” can be acknowledged with the presumption of consent of the victim. Thus, it cannot be the crime of indecent act by compulsion. Accordingly, the court below's decision of innocence against the above defendant is justified.

Therefore, even if the judgment below erred by misapprehending the legal principles above, it cannot affect the conclusion of the judgment, which is therefore groundless.

2. The part concerning the crime of causing rape against Defendant 2

According to the reasoning of the judgment of the court below, the court below judged that the above facts charged were derived from the time when there is no proof of the crime, and sentenced not guilty against the above defendant. In light of the records, the court below's examination of the process of cooking the evidence conducted by the court below in taking such measures is just and there is no violation of the rules of evidence, such as the theory of litigation, incomplete hearing, omission of judgment, or misapprehension of the legal principles, and therefore there is no error of law as to

3. Therefore, the prosecutor's appeal against the Defendants is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Jeong Tae-tae (Presiding Justice)