[2] In a case where the defendant was prosecuted for violating the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes by causing sexual intercourse and indecent act against the disabled Gap by inducing Gap to the defendant's house by using the Internet page with the knowledge that the defendant had a mental disorder, the case holding that the defendant's act does not constitute "the crime of sexual intercourse or indecent act by deceptive scheme against the disabled" under the aforementioned Act

[2] In a case where the defendant was prosecuted for violation of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) by inducing the defendant to sexual intercourse and committing an indecent act by inducing the defendant to sexual intercourse with the defendant's house by using the Internet page with the knowledge of mental disorder, the case holding that even if the defendant induced the defendant to have sexual intercourse with the purpose of sexual intercourse and let the defendant enter the defendant's house, the above inducement is merely an act to mislead the defendant's house, and it is not acknowledged that the relationship between the sexual intercourse and the sexual intercourse with the defendant's house is indivisible, and thus, the defendant's act does not constitute a crime of sexual intercourse or an indecent act under a deceptive scheme against the disabled person under the above Act, and thus, it cannot be said that the defendant's act was omitted or unable to know it.

Article 6(5) and (6) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012) provides that a person who has sexual intercourse with or committed an indecent act against a disabled person shall be punished by deceptive scheme. The term “defensive scheme” as referred to in the above provision refers to that a perpetrator misleads the other party for the purpose of sexual intercourse or indecent act by taking advantage of the other party’s in-depth state to achieve the purpose of sexual intercourse or indecent act. Here, the term “misunderstanding, dismissal, site” refers to the mistake, perception, site itself of sexual intercourse or indecent act, or mistake, attachment, site does not refer to other conditions that are not recognized as indivisible with sexual intercourse or indecent act (see, e.g., Supreme Court Decision 2012Do9119, Sept. 27, 2012).

The summary of the facts charged of this case is that the defendant, knowing that the victim was mentally ill, had been induced by the defendant's house using the Internet page, and then sexual intercourse and conspiracy with the victim by sexual intercourse and conspiracy.

However, even if the defendant induceds the victim with the purpose of sexual intercourse, etc. and let the victim enter the office of the defendant, the defendant's inducement is merely an act to mislead the victim into the office of the defendant, and since the victim's sexual intercourse and the act of conspiracy are not acknowledged to be indivisiblely related between the defendant's sexual intercourse and the act of conspiracy and the act of conspiracy, it cannot be said that the victim was omitted or was unaware of the mistake in relation to the act of sexual intercourse or the act of indecent act itself due to the inducement of the defendant. Thus, the defendant's act does not constitute the crime of sexual intercourse or indecent act by fraudulent means against the

Nevertheless, the lower court upheld the first instance judgment that found the Defendant guilty of the facts charged of this case. In so doing, the lower court erred by misapprehending the legal doctrine on deceptive scheme as a constituent element of Article 6(5) and (6) of the Act on Special Cases, thereby adversely affecting the conclusion of the judgment.

On the other hand, as long as the part concerning the accused case is reversed, the part regarding the case for the attachment order to be tried together with the deliberation and sentenced simultaneously cannot be reversed.

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)