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Defendant
All appeals by prosecutors are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Defendant 1) Although the Defendant did not have exercised the power of the victim at the time of the instant case, the lower court found the Defendant guilty of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (compacting with Persons with Disabilities) due to the reduction of the facts charged in the instant case. The lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment. 2) The sentence of imprisonment (five years of imprisonment, etc.)
(B) only claims unreasonable sentencing on the principal sentence.
1) The court below found the defendant guilty of the charge of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape with Persons with Disabilities) even though the defendant attempted to rape the victim by assault or threat to the extent that it is impossible or considerably difficult to resist the victim's resistance, and the court below erred by misunderstanding the facts, thereby affecting the conclusion of the judgment. 2) The above sentence sentenced by the court below of unfair sentencing is too uneasible and unfair
2. Determination
A. In light of the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court as to the Defendant’s assertion of mistake of facts, the lower court did not err by misapprehending the fact that the lower court convicted the Defendant of the facts constituting the facts charged in the lower judgment.
① Article 6(5) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes intends to protect the right to sexual self-determination of persons with disabilities by punishing the act of sexual intercourse with a female with a physical or mental disability by deceptive means or by force. Here, “defensive force” refers to the ability sufficient to suppress the victim’s free will, and does not ask him/her either tangible or intangible or intangible, it is possible to use not only assault and intimidation, but also social, economic or political status or authority of the offender.
In addition, whether or not sexual intercourse has been made is the content and degree of the tangible power exercised.