Open Decision Ledger · Criminal law
Violent force itself as the indecent act in forced indecent assault
Supreme Court, July 23, 2020, 2019Do15421 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 강제추행
Official text on the National Law Information Center
Question
Does the crime of forced indecent assault include cases where the act of violence is itself the indecent act, what degree of violence is required in such a case, and how is the meaning of an indecent act decided?
Holding
The crime includes cases where the violence is itself the indecent act. In such a case the violence need not be of a degree that overcomes the victim's will; any exercise of physical force against the victim's will suffices, whatever its size or strength. Whether conduct is an indecent act is decided cautiously, weighing together the victim's will, sex and age, the parties' prior relationship, the circumstances leading to the act, the specific form of the conduct, the objective surroundings and the sexual moral concepts of the age.
Points at issue, verbatim
강제추행죄에 폭행행위 자체가 추행행위라고 인정되는 경우가 포함되는지 여부(적극) 및 이때 요구되는 ‘폭행’의 정도 / ‘추행’의 의미 및 판단 기준
Unofficial English translation
Whether the crime of indecent act by compulsion includes cases where the act of assault itself is recognized as the indecent act (affirmative), and the degree of 'assault' required in such a case / the meaning of 'indecent act' and the criteria for its determination
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 2017. 7. 6.자 강제추행에 관한 무죄 부분 및 유죄 부분을 파기하고, 이 부분 사건을 서울남부지방법원에 환송한다. 검사의 나머지 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it concerns the not guilty and guilty portions of the indecent act by compulsion on July 6, 2017, and this part of the case is remanded to the Seoul Southern District Court. The prosecutor's remaining final appeal is dismissed.
Form of the test
Circumstances weighed Stated in the decision
이에 해당하는지 여부는 피해자의 의사, 성별, 연령, 행위자와 피해자의 이전부터의 관계, 행위에 이르게 된 경위, 구체적 행위태양, 주위의 객관적 상황과 그 시대의 성적 도덕관념 등을 종합적으로 고려하여 신중히 결정되어야 한다
Unofficial English translation
Whether it falls under this must be carefully determined by comprehensively considering the victim's intent, sex, age, the prior relationship between the actor and the victim, the circumstances leading to the act, the specific manner of the act, the surrounding objective situation, and the sexual moral concepts of the time.
Factors
- 강제추행죄에 폭행행위 자체가 추행행위라고 인정되는 경우가 포함되는지 여부(적극)
- 이때 요구되는 ‘폭행’의 정도
- ‘추행’의 의미 및 판단 기준
Unofficial English translation
• Whether the crime of indecent act by compulsion includes cases where the act of assault itself is recognized as the indecent act (affirmative)
• The degree of 'assault' required in such a case
• The meaning of 'indecent act' and the criteria for its determination
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2002. 4. 26. 선고 2001도2417 판결(공2002상, 1306)
Unofficial English translation
Supreme Court Decision 2001Do2417 decided April 26, 2002 (Gong 2002 Sang, 1306)
Decisions referred to
대법원 2002. 4. 26. 선고 2001도2417 판결(공2002상, 1306), 대법원 2015. 9. 10. 선고 2015도6980, 2015모2524 판결(공2015하, 1577), 대법원 2020. 3. 26. 선고 2019도15994 판결(공2020상, 861)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where a superior colleague pulls a subordinate's wrist after a rejected invitation, but there was no late-night drinking gathering and the parties had no prior relationship, would the same act still satisfy the comprehensive assessment?
The remand judgment by the Seoul Southern District Court on the count of 6 July 2017 will show how the standard is applied to these facts and what sentence follows in concurrence with the conviction of 12 July 2017. Any amendment to Article 298 of the Criminal Act, or a later Supreme Court decision changing the meaning of an indecent act, would require this entry to be read again.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 4 (form of the test).
Axis 4 (Form of the test): Primary “Circumstances weighed” vs Independent “Existing test applied”
The primary reading labels the standard as comprehensive weighing of listed circumstances, while the independent reading labels it as applying the established standard to the facts. The difference is in how the test is described, not in its content.
강제추행죄에 폭행행위 자체가 추행행위라고 인정되는 경우가 포함되는지 여부(적극) 및 이때 요구되는 ‘폭행’의 정도Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul Southern District Court, in its judgment of 4 October 2019 (2018No2408), held on the charge of 6 July 2017 that the defendant had indeed pulled the victim's wrist after asking her to go to a motel, but found that this could at most be sexual harassment and was hard to regard as the 'indecent act' of forced indecent assault. On the charge of 24 October 2017 it found the victim's statement unreliable and acquitted. It kept the first-instance conviction on the charge of 12 July 2017.
Supreme Court standard: The Supreme Court held that the reasoning on the acquittal of 6 July 2017 could not stand: the wrist-grabbing while inviting the victim to a motel already contained a sexual motive, so the intent to commit an indecent act was made out, and conduct is not sexually meaningful only if it involves stroking or attempting to embrace the victim, nor does the distinction turn on which body part was touched. Given that the victim was a new employee of about three months' standing, the defendant her senior colleague in the same department, and that the act came after a late-night drinking gathering when the two were left alone, the force was exercised against her will, infringed her sexual freedom and was likely to cause an ordinary person sexual shame or disgust, and the later taxi did not affect the offence, because violence committed together with the indecent act need not overcome the will. The Court found no error on the 24 October 2017 count or on the defendant's appeal against the 12 July 2017 conviction. It reversed both the acquittal and the conviction on the 6 July 2017 count, because that count stands in concurrence under the first sentence of Article 37 of the Criminal Act and one sentence must be imposed for the whole.
Distinguishing conditions
- Conduct in which no force is exercised against the victim's will, since the Court's rule turns on physical force run against that will.
- Conduct with no sexual motive inherent in it, where the act of force is not itself capable of being the indecent act.
- A charge decided on the unreliability of the victim's account, as the count of 24 October 2017 was, where the Court left the acquittal standing.
Record verification notes
Set the facts against the elements before relying on this decision: the sexual motive inherent in the act, the exercise of force against the victim's will, and the circumstances the Court weighed, namely the parties' ages, their superior and subordinate positions in the same department, the late-night drinking gathering and their being left alone. Then separate each count, because the Court disturbed only the count of 6 July 2017 and left both the acquittal of 24 October 2017 and the conviction of 12 July 2017 untouched.
From the official text
Points at issue
강제추행죄에 폭행행위 자체가 추행행위라고 인정되는 경우가 포함되는지 여부(적극) 및 이때 요구되는 ‘폭행’의 정도 / ‘추행’의 의미 및 판단 기준
Unofficial English translation
Whether the crime of indecent act by compulsion includes cases where the act of assault itself is recognized as the indecent act (affirmative), and the degree of 'assault' required in such a case / the meaning of 'indecent act' and the criteria for its determination
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결 중 2017. 7. 6.자 강제추행에 관한 무죄 부분 및 유죄 부분을 파기하고, 이 부분 사건을 서울남부지방법원에 환송한다. 검사의 나머지 상고를 기각한다.
Unofficial English translation
The judgment of the court below is reversed insofar as it concerns the not guilty and guilty portions of the indecent act by compulsion on July 6, 2017, and this part of the case is remanded to the Seoul Southern District Court. The prosecutor's remaining final appeal is dismissed.
Provisions referred to
형법 제298조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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