간접정범에 의한 강제추행죄의 성부- 대법원 2018. 2. 8. 선고 2016도17733 판결 -

Abstract

In order to see if the molestation is possible through the principal acting through an innocent agent, it must be discussed whether the molestation is a Eigenhändige Delikte. The view denying the concept of Eigenhändige Delikte denies that the act of the actor has a relation with the infringement of legal interest or is meaningful in the realization of the element of crime because of the nature of crime. However, It is reasonable to affirm the fact that the specificity of the individual element of crime has priority over the distinction between the accomplice and principal and that Article 33 of the Criminal Code does not apply to principal acting through an innocent agent. And the molestation is not a crime which is constituted only by one act of extortion without extra act of the defendant in the element of crime like the quasi-molestation. Therefore, it is not important whether the perpetrator himself or herself is going to commit crime. Therefore it is reasonable to deny the character of the Eigenhändige Delikte. In the case of the molestation, it is not impossible to infringe the victim's sexual self-determination by the complicity in the acts of assault or threat or by third person's actions. It is reasonable to understand the concept of molestation objectively, and even if there is no physical contact, molestation can be recognized. Therefore, the behavior of the defendant, which caused the victims to send naked photographs and videos, can be regarded as a molestation, as opposed to the second judgment. In the case of self injury, the elements of crime are not satisfied. Likewise, in the case of an molestation act, it should be considered same. These acts are difficult to cause public sexual shame or repulsion because they do not infringe sexual self-determination. In this case, the defendant should be regarded as an principal acting through an innocent agent. Meanwhile, it is a another question whether the defendant made the victims insert a ballpoint pen or the like into the genital organ and photographed and transmitted the video is imitative rape. It is obvious that the case of "Sexually engaging, inserting a part of the body or an instrument except the penis in the anus" is typical imitative rape. In this case, it is reasonable that the similar rape crime is an principal acting through an innocent agent.