성폭력범죄의처벌등에관한특례법위반(장애인준강간등)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for five years.
Sexual assault, 40 hours against the defendant.
1. The summary of the grounds for appeal and the person subject to a request to attach an attachment order (hereinafter “defendants”) are only sexual intercourses with the victim with the victim’s consent, based on the victim’s patriotism, and the victim does not have sexual intercourse with the victim by taking advantage of his/her mental disability to resist.
2. Determination of the accused case
A. As to the allegation in the grounds of appeal, Article 6(4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes against Persons with Disabilities provides that “a person who has sexual intercourse with another person or commits an indecent act by taking advantage of his/her physical or mental disability having difficulty in resisting or resisting such person shall be punished in accordance with paragraphs (1) through (3).” The former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter the same applies) is wholly amended by Act No. 11556, Jun.
Article 6(4) of the Criminal Act provides that “a person who commits a crime under Article 299 of the Criminal Act against a person with a physical or mental disability shall be punished in accordance with the examples under paragraphs (1) through (3).” Article 299 of the Criminal Act provides that “The person who has sexual intercourse or commits an indecent act by taking advantage of the person’s mental or mental disability or the state of failing to resist shall be punished in accordance with Articles 297, 297-2 and 298.” Article 299 of the Criminal Act refers to a case where psychological or physical resistance is absolutely impossible or considerably difficult due to reasons other than mental disorder (see, e.g., Supreme Court Decision 98Do3257, May 26, 2000).” Article 6(4) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes provides that “a person with a physical or mental disability is unable to resist, or is unable to resist due to physical or mental disability as well as in itself, due to psychological or mental disability.