[1] Type and degree of assault in the crime of indecent act by compulsion

[2] The meaning and standard of determining indecent act in the crime of indecent act by compulsion

[3] The case holding that the act of spreading the victim's room at the moment while dancing with the victim constitutes an indecent act by compulsion

[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 assault or intimidation, but also the case where the act of assault itself is recognized as an indecent act. In this case, as long as the assault does not necessarily require that the degree of suppressing the other party’s intention is to be limited, it does not necessarily mean that the assault has the force against the other party’s will, regardless of its power, it is against the other party

[2] An indecent act refers to an act that causes a sense of sexual humiliation or aversion to the public objectively and contrary to good sexual morality, and thus infringing on the victim’s sexual freedom. Whether an act constitutes an indecent act ought to be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship before the actor and the victim, circumstances leading to the act, specific form of act, and the surrounding objective situation and the sexual morality concept.

[3] The case holding that even if the act of assaulting the victim's neglect while dancing with the victim is merely a pure act, it constitutes the exercise of tangible force committed against the victim's will and it can be evaluated as an indecent act from the general public as not only infringing the victim's sexual freedom, but also as an indecent act from the general public, the act of assault itself constitutes an indecent act and thus constitutes an indecent act

[1] Article 298 of the Criminal Code / [2] Article 298 of the Criminal Code / [3] Article 298 of the Criminal Code

[1] Supreme Court Decision 83Do399 delivered on June 28, 1983 (Gong1983, 1153) Supreme Court Decision 91Do3182 delivered on February 28, 1992 (Gong1992, 1217) Supreme Court Decision 94Do630 delivered on August 23, 1994 (Gong1994Ha, 2567) / [2] Supreme Court Decision 97Do2506 delivered on January 23, 1998 (Gong198, 644)

Defendant

Prosecutor

Daejeon District Court Decision 2000No1469 delivered on April 27, 2001

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

1. The crime of indecent act by compulsion includes not only the case where the other party commits an indecent act after making 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. In this case, the assault does not necessarily require that the degree of suppressing the other party’s intent is to be limited, and inasmuch as the exercise of force against the other party’s will is contrary to the other party’s intention, it shall be regardless of its force (see, e.g., Supreme Court Decisions 91Do3182, Feb. 28, 1992; 94Do630, Aug. 23, 1994; 94Do630, Feb. 23, 1994). The indecent act is objectively an act contrary to the other party’s sexual freedom, which causes sexual humiliation or aversion to the other party’s intent, gender, age, relationship between the offender and the victim before it, specific circumstances leading to such act, objective circumstances leading to such act, and sexual morality in the age.

2. According to the court below's findings, the defendant, at the underground room of the restaurant operated by the defendant's wife, was a victim (which is a woman of 35 years of age), who is an employee (which is a woman of 35 years of age), and his scarcity and singing, and was scarcityd by the defendant while his scarbing and singing. In light of the relation between the defendant and the victim recognized in the record along with the above facts, the circumstances leading to the above act and the situation at the time, etc., even if the above act was merely a pure act, the defendant's act constitutes a tangible act committed against the victim's will and constitutes an indecent act from the ordinary perspective as well as infringing the victim's sexual freedom. According to the legal principles mentioned above, if the assault act itself can be acknowledged as an indecent act, and the defendant's criminal intent can be sufficiently recognized in light of the behavior and circumstances at the time of the indecent act.

Nevertheless, the court below acquitted the defendant on the ground that it is insufficient to view that the defendant exercised the force against the victim's will as to the above act by compulsion, and it is difficult to view that the defendant had a criminal intent to commit an indecent act by compulsion. In so doing, the court below erred by misapprehending the legal principles on the crime of indecent act by compulsion, which affected the conclusion of the judgment. Therefore, the ground of appeal assigning

3. 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.

Justices Kim Ji-dam (Presiding Justice)