성폭력범죄의처벌등에관한특례법위반(장애인준강간등)
The prosecutor's appeal is dismissed.
1. The summary of the grounds for appeal (fact-finding) is that the victim with intellectual disability of class 1, who is a party with intellectual disability of class 1, answers to confusion in the course of committing the crime due to the characteristics of such disability. Nevertheless, in light of the circumstances such as the consistent reply as to the substantive relationship and the statement to some extent at the time of committing the crime, it can be acknowledged that the defendant has sexual intercourse with the victim who was unable to exercise his/her right to sexual self-determination due to mental disorder and was unable to resist. However, the court below erred by misapprehending the facts by finding
2. Determination
A. The summary of the facts charged is a person who lives in an apartment, such as a victim D (V, 21 years of age) residing in the 11th, Gwanak-gu, Seoul Special Metropolitan City, and its attachment.
The victims are 38 years of age and 8 years of age and 5 months of age (social index 47), and intellectual disability 1 degree of disability that is considerably lower than the same age level, such as recognition function, judgment and ability of expression, and response ability.
The victim was living together with the victim at the above place of residence, but the victim was a severe alcohol addict, and the mother was not able to actually protect the victim when the victim was in the sixth year of elementary school.
The defendant was well aware of the fact that the victim had the above mental disorder and there was no sexual self-determination right, and that the parents of the victim did not actually protect the victim, while living in the 19th apartment floor like the victim.
Accordingly, the Defendant, while drinking alcohol to the victim's father, intentionally and by intentionally finding the doping system with the victim's house, he he gets the victim to get the victim to get a "sken" and he gets the victim to have a "sken", and used the victim's failure to resist due to mental disorder.