Open Decision Ledger · Criminal law
Violent force as the molestation itself in the offence of forced molestation
Supreme Court, Dec. 10, 2020, 2020Do11186 (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: 성폭력범죄의처벌등에관한특례법위반(업무상위력등에의한추행)
Official text on the National Law Information Center
Question
Does the offence of forced molestation under Article 298 of the Criminal Act include a case in which the act of force is itself the act of molestation, what degree of force does that require, how is it decided whether conduct amounts to molestation, and may a defendant appeal against a judgment of acquittal?
Holding
It does. The offence covers not only force or threats that make resistance difficult followed by molestation, but also cases where the act of force is itself the molestation; there the force need not be of a degree that suppresses the other person's will, and any exercise of physical force contrary to that will suffices regardless of its strength. Molestation is conduct that objectively causes sexual shame or disgust, offends good sexual moral concepts and infringes the victim's sexual freedom, and whether conduct is molestation is decided with careful, comprehensive consideration of the victim's will, sex, age, the prior relationship, the circumstances leading to the act, its concrete form, the surrounding objective circumstances and the sexual moral concepts of the time. A defendant's appeal against an acquittal is inadmissible, because an appeal exists to correct an unfavourable judgment.
Points at issue, verbatim
강제추행죄에 폭행행위 자체가 추행행위라고 인정되는 경우가 포함되는지 여부(적극) 및 이때 요구되는 ‘폭행’의 정도 / ‘추행’의 의미 및 추행에 해당하는지 판단하는 기준
Unofficial English translation
Whether the crime of forcible molestation includes cases where the act of assault itself is recognized as an indecent act (affirmative) and the degree of "assault" required on that occasion / the meaning of "indecent act" and the criteria for determining whether an act constitutes an indecent act
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 고등군사법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the High Military Court.
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 an act falls under this category must be carefully determined through a comprehensive consideration of the victim's intent, sex, age, the preexisting 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 morality of the times
Factors
- 강제추행죄에 폭행행위 자체가 추행행위라고 인정되는 경우가 포함되는지 여부(적극) 및 이때 요구되는 ‘폭행’의 정도
- ‘추행’의 의미 및 추행에 해당하는지 판단하는 기준
- 무죄판결에 대한 피고인의 상고가 적법한지 여부(소극)
Unofficial English translation
• Whether the crime of forcible molestation includes cases where the act of assault itself is recognized as an indecent act (affirmative) and the degree of "assault" required on that occasion
• The meaning of "indecent act" and the criteria for determining whether an act constitutes an indecent act
• Whether the defendant's final appeal against a judgment of not guilty is lawful (negative)
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
[1] 대법원 2002. 4. 26. 선고 2001도2417 판결(공2002상, 1306), 대법원 2020. 3. 26. 선고 2019도15994 판결(공2020상, 861), 대법원 2020. 7. 23. 선고 2019도15421 판결 / [2] 대법원 1994. 7. 29. 선고 93도1091 판결(공1994하, 2246), 대법원 2012. 12. 27. 선고 2012도11200 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the person exercising force is not the victim's workplace superior and there is no earlier sexually harassing conduct, what evidence can show that no motive other than a sexual one explains the physical contact?
The remand judgment of the High Court Military in this case, once it re-examines the intent to molest on the record, will show how the comprehensive test is applied. A later decision that changes the meaning of molestation or the rule on a defendant's appeal, or an amendment to Article 298 of the Criminal Act, would require this entry to be read again.
Cross-family AI independent reading & axis check
6 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 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Circumstances weighed” vs Independent “Existing test applied”
The primary reads the standard as comprehensive consideration of listed factors, while the independent reads it as applying the standard to the specific facts; both reflect the same multi-factor test, but one stresses the general framework and the other its application.
‘추행’의 의미 및 추행에 해당하는지 판단하는 기준Axis 8 (Open question and revisit condition): Primary “Where the person exercising force is not the victim's workplace superior and there is no earlier sexually harassing conduct, what evidence can show that no motive other than a sexual one explains the physical contact?” vs Independent “What final judgment and, if convicted, sentence will follow after reconsideration on remand?”
The primary asks what evidence shows the absence of a non-sexual motive, while the independent asks what final judgment and sentence follow on remand, so the two point to different unresolved matters.
강제추행죄에 폭행행위 자체가 추행행위라고 인정되는 경우가 포함되는지 여부(적극) 및 이때 요구되는 ‘폭행’의 정도 / ‘추행’의 의미 및 추행에 해당하는지 판단하는 기준Raw 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 High Court Military, in its judgment of 30 July 2020 (2019No410), left standing the first-instance judgment of acquittal. It accepted the victim's statement as credible and found that the defendant, a 35-year-old male superior, held the left hand of a 25-year-old female subordinate against her will and rubbed the back of that hand with both thumbs for about ten seconds, an act covered by the exercise of authority in the workplace, but held that it fell short of conduct causing an ordinary and average person sexual shame or disgust, offending good sexual moral concepts and infringing the victim's sexual freedom, and that molestation could not be found.
Supreme Court standard: The Supreme Court held that the court below had misapprehended the law on forced molestation, with effect on the judgment. The circumstances of the contact, including its manner and its continuation for about ten seconds, showed a sexual motive, so the intent to molest could be found; and considering the victim's age and position as a subordinate, her statement that the defendant's sexually harassing conduct had troubled her before, that the two were alone in the office, and that no motive other than a sexual intention explained the act, the act was force contrary to her will that infringed her sexual freedom and could be seen as molestation. It added that the specific body part touched does not by itself decide whether sexual shame or disgust arises, and that forced molestation does not require the defendant to go on to further sexual words or conduct; it found the defendant's own appeal against the acquittal to be inadmissible.
Distinguishing conditions
- Physical contact that the victim did not oppose, since the Court relied on the exercise of force contrary to the victim's will.
- Conduct that, on the comprehensive consideration of the listed circumstances, does not cause sexual shame or disgust and does not infringe the victim's sexual freedom.
- A defendant's own appeal, because an appeal exists to correct a judgment unfavourable to the appellant.
Record verification notes
Set the file against each circumstance the Court weighed: the victim's age and position, the defendant's authority over her, any earlier sexually harassing words or acts, whether the two were alone, and the manner and duration of the contact. Confirm that the contact was contrary to the victim's will, and check whether the appeal in the file is the prosecution's, since a defendant's appeal against acquittal is inadmissible.
From the official text
Points at issue
[1] 강제추행죄에 폭행행위 자체가 추행행위라고 인정되는 경우가 포함되는지 여부(적극) 및 이때 요구되는 ‘폭행’의 정도 / ‘추행’의 의미 및 추행에 해당하는지 판단하는 기준 [2] 무죄판결에 대한 피고인의 상고가 적법한지 여부(소극)
Unofficial English translation
[1] Whether the crime of forcible molestation includes cases where the act of assault itself is recognized as an indecent act (affirmative) and the degree of "assault" required on that occasion / the meaning of "indecent act" and the criteria for determining whether an act constitutes an indecent act [2] Whether the defendant's final appeal against a judgment of not guilty is lawful (negative)
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
원심판결을 파기하고, 사건을 고등군사법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the High Military Court.
Provisions referred to
[1] 형법 제298조 [2] 형사소송법 제325조, 제338조
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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