The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

However, for three years from the date this judgment becomes final and conclusive.

Summary of Grounds for Appeal

The Defendant at 60 years of age has a fluorial act (hereinafter referred to as “fluorial act”) around the 7th anniversary of his/her resistance. Even if the Defendant did not think of his/her sexual desire or sexual satisfaction, he/she should be evaluated as an indecent act. In such a case, the intention of the indecent act should be recognized only with the awareness of the above act itself.

Nevertheless, the judgment of the court below which acquitted the defendant on the ground that it is difficult to view that the defendant had the intention to commit the crime of indecent act by compulsion, was erroneous in the misapprehension of legal principles.

Judgment

The crime of indecent act against a minor under the age of 13 under Article 7 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes is protected by the legal interest of “the right and interest of a child under the age of 13 to form sexual identity and values without any improper sexual stimulation or physical handicap from outside.” It does not require a subjective motive or objective to stimulate, promote, and satisfy sexual desire as a subjective constituent element necessary for its establishment. In the above crime, the term “indecent act” is objectively contrary to the other party’s intention, gender, age, relationship before the offender and the victim, circumstances leading to the act, specific circumstances leading to the act, objective circumstances, and sexual morality in the age of the victim. It is against the victim’s sexual freedom. In light of the aforementioned legal principles, the victim shall be determined with careful consideration in light of the victim’s intent, gender, age, and the victim’s previous relationship before the offender and the victim’s sexual moral sense (see, e.g., Supreme Court Decision 200Do579, Sept. 24, 2009).