[1] Definition of force and indecent act under Article 11(1) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

[2] Criteria for determining whether Article 11(1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims Thereof is applicable

[1] The threat of force under the Act on the Punishment of Sexual Crimes and the Protection of Victims (Indecent Act on the Abuse of Occupational Authority, etc.) refers to the ability sufficient to suppress the victim's free will. Since it is not tangible or intangible, it is possible to use not only assault and intimidation, but also social, economic, political status or authority. It includes cases where force itself is recognized as an indecent act. In this case, power does not require that the victim's free will will be practically controlled. In addition, an indecent act is objectively contrary to the concept of sexual morality and that it causes sexual humiliation or aversion to the general public.

[2] The crime of indecent act committed in the course of performing duties under the Act on the Punishment of Sexual Crimes and the Protection of Victims shall be limited to the case where individual sexual freedom is seriously infringed, and it shall be limited to the case where individual sexual freedom is also judged as an indecent act from the perspective of ordinary people. In this sense, in the case where kis and potters etc., whether it constitutes an indecent act should be carefully examined by taking into account the victim's intent, gender, age, relationship before the offender and the victim, circumstances leading to such an act, specific form of act, objective situation surrounding it, and sexual moral sense in the age.

[1] Article 11(1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims thereof / [2] Article 11(1) of the Act on the Punishment of Sexual Crimes and the Protection of Victims Thereof

[1] Supreme Court Decision 87Do453 delivered on April 28, 1987 (Gong1987, 935) Supreme Court Decision 95Do1589 delivered on October 12, 1995 (Gong1995Ha, 3836)

Defendant

Defendant

Gyeongnam Law Firm, Attorneys Park Jong-tae et al.

Changwon District Court Decision 97No1195 delivered on September 10, 1997

The appeal is dismissed.

The grounds of appeal by defense counsel are also examined.

1. As to the mistake of facts among the grounds of appeal by the defense counsel

Examining the evidence of the first instance judgment as cited by the court below in light of the records, the court below's decision that there was a proof of a crime against the defendant's this case cannot be deemed to have any error of incomplete deliberation or misconception of facts due to a violation of the rules of evidence, and thus,

Therefore, the date and time of the crime No. 2 in the judgment of the court below as to the number of victims was recognized as around May 14, 1994. According to the records, the above victim can be aware of the fact that he filed a complaint within one year from that time. Thus, the court below did not err by misapprehending the legal principles as to the period of filing

2. As to the misapprehension of legal principles as to indecent act by attorney's occupational force among the grounds of appeal

The crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims (hereinafter referred to as the "sexual assault act in the workplace force") is a indecent act committed by deceptive means or by force against a person under his/her protection or supervision due to business, employment or other relations. In this case, the force refers to a force sufficient to suppress the victim's free will, and it is possible to use the social, economic, political status or right of authority as well as assault, intimidation as well as assault, threat, and social, economic, political status or right because it is not a tangible, intangible or intangible. In this case, the force in question includes a case where the act of force itself is deemed an indecent act, and it does not require that the victim's will of freedom will be practically controlled, and the indecent act is objectively contrary to good sexual moral sense and that it causes sexual humiliation or aversion to the general public.

In addition, since the crime of indecent act in the occupational sphere of sexual assault law is protected by the law, the issue of whether it constitutes the crime should be limited to the case where the individual's sexual freedom is seriously infringed, and it is judged as an indecent act from the perspective of the general public. In this sense, in relation to whether it constitutes an indecent act, it should be carefully examined in consideration of the victim's intent, gender, age, relationship before the offender and the victim, circumstances leading to such act, specific form of act, objective situation in the surrounding area and the sexual moral sense of the age.

Examining the facts in light of the above legal principles, the defendant, as the head of a kindergarten, tried to commit an indecent act against his will against the victims who are or will be employed by the kindergarten teachers by taking advantage of his status as the head of the kindergarten, and tried to get off the victims who had been in front of the office of the defendant (on the market), forced kids (on the market 2 act) by getting on his own vehicle and being pushed off the victims at a place where they are pushed off, and then without any other people in the kindergarten, the victim's humbbbbbbbbs (on the market 3 act), and continued to contact the victims with the victim's humbbbs (on the market 3 act), and the victim's humbbbs and humbs the victim's humbs, and thus, the defendant's act of infringing upon the victim's right by using his phone humbs and humbs, and the defendant's act of infringing the victim's right by using his phone 2.

In the same purport, it is deemed that the court below recognized that each act of the defendant in the judgment of the court below was committed by force against a person under protection or supervision due to employment or other relationship with the defendant, and there is no error of law by misunderstanding the legal principles on the crime of indecent act committed by the occupational force under the sexual assault law. The argument in the grounds of appeal on this point cannot be accepted.

3. As to the misapprehension of legal principles as to social rules among the grounds of appeal by a defense counsel Gyeongnam Law Firm

According to the reasoning of the judgment below, the court below held that the act that does not violate the social rules refers to an act in accordance with the normal rules of conduct approved as fair and reasonable by an average person in a sound social life, and should be determined by considering the motive or purpose of the act, legitimacy of the act, the means or method of the act, reasonableness of the protected legal interest, balance between the protected legal interest and the infringed legal interest, urgency, supplementary nature that there is no other means or method than the act, and cultural norms at the time of the act, etc. In light of the above judgment criteria, the defendant's act (the act No. 2, No. 4 in the market) cannot be viewed as an act that does not violate the social rules, and there is no reason to believe that there is no error in the misapprehension of the legal principles as to the social rules.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Jeong Jong-ho (Presiding Justice)