성폭력범죄의처벌등에관한특례법위반(친족관계에의한강간)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for seven years.
Sexual assault against the defendant for 80 hours.
1. Summary of grounds for appeal;
A. The lower court’s determination that limited interpretation of “persons with physical or mental disability” under Article 6(1) of the Act on Special Cases Concerning the Punishment of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) to “persons with physical or mental disability,” is erroneous in the misapprehension of legal doctrine, which limited the scope of “persons with physical or mental disability to the extent that the exercise of sexual self-determination is necessary to be specially protected due to relatively low recognition ability, resistance ability, response ability, etc. compared to non-disabled persons.”
2) Even as shown in the lower judgment, there is a need to specially protect the victim’s right to sexual self-determination as to the degree of disability of the instant case.
It should be seen that the defendant was aware of it.
The judgment of the court below which did not recognize it is erroneous in the misapprehension of facts, which affected the judgment.
B. The defendant asserts that, with respect to the punishment sentenced by the court below (seven years of imprisonment with prison labor), the defendant is too unreasonable, and the prosecutor asserts that it is too unfasible and unfair.
2. Judgment on the misapprehension of legal principles and the assertion of mistake of facts
A. The summary of the facts charged was raped by the Defendant, as stated in each of the facts constituting a crime in the lower judgment.
B. Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 2011) provides that “A person who has sexual intercourse with a female or commits an indecent act against another person by taking advantage of the person’s physical or mental disability that makes it impossible to resist shall be punished under Article 297 or 298 of the Criminal Act.”
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In this regard, the Supreme Court held that the above provision is a legal interest to protect the right to sexual self-determination of the disabled, so even if the victim is a disabled person with a intellectual disability.