성폭력범죄의처벌등에관한특례법위반(장애인준강간)등
The prosecutor's appeal is dismissed.
1. According to the evidence submitted by the Prosecutor’s summary of the grounds for appeal, the victim of the instant case with a disability of class 2 with intellectual disability was unable to exercise his/her right to sexual self-determination at the time of the instant crime, and was in a difficult state to resist or resist to the extent that he/she could not exercise his/her right to sexual self-determination, and the Defendant, while aware of such circumstances,
Nevertheless, the judgment of the court below which acquitted the charged facts of this case is erroneous by misapprehending the legal principles or by misapprehending the legal principles, which affected the conclusion.
2. Determination
A. The lower court on the part of the Defendant case: (a) deemed that the victim was a disabled person of the second degree of intellectual disability; (b) based on the evidence duly admitted and investigated by the prosecutor, the evidence alone submitted by the prosecutor alone has a mental disorder to the extent that the victim cannot exercise his right to sexual self-determination at the time of the instant case without reasonable doubt.
It is difficult to readily conclude that the Defendant, at the time of the instant case, had sexual intercourse using the victim’s awareness that the victim was unable to resist or resist due to a mental disorder, and there is no other evidence to acknowledge it. ② The part in which the victim stated in the investigative agency and the court below to the effect that the victim had forced sexual intercourse several times is difficult to believe when comprehensively taking into account the background of the statement of damage, the circumstances inconsistent with the statement of damage, the characteristics of the victim, etc.
In light of the records, the above judgment of the court below is just, and there is no error of misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.
Therefore, prosecutor's assertion is without merit.
B. The probation of a specific criminal who filed an appeal against a prosecuted case shall be placed on the part of the case for which the request for attachment order is filed.