The meaning of “persons with physical disabilities” and the standard for determining physical disabilities as prescribed by Article 6 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes / Whether an actor should be aware of such physical disabilities as at the time of committing a crime in order to establish “a crime of rape, indecent act by compulsion, etc. against a person with physical disabilities” punished by the aforementioned provision (affirmative)

Article 6 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) is punishing a person with a physical disability to have sexual intercourse with another person who has committed a crime of rape or a crime of indecent act by force, or committed a deceptive scheme or by force.

Article 6 of the former Sexual Violence Punishment Act, enacted on April 15, 2010, punished only sexual intercourse or indecent act with the object of “a woman or a person who is unable to resist due to physical disability, etc.” However, after the amendment of November 17, 201, the aforementioned amendment is subject to punishment for rape, indecent act by force, etc. of “a woman or a person who has physical disability” as the object of “a woman or a person who has physical disability.” The purport of the amendment is to punish sexual assault crimes against the disabled in order to protect the disabled persons with the awareness ability, ability to resist, response ability, etc. of sexual assault.

Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse, which provides for a person with disabilities as “a person subject to considerable restriction in his/her daily life or social life for a long time due to any physical or mental disability,” and Article 8 of the Act on the Protection of Children and Juveniles against Sexual Abuse, which is similar to the Sexual Violence Punishment Act, stipulates that the concept of the disabled under the Act on the Protection of Persons with Disabilities and the meaning of the disabled children and juveniles with disabilities is as they are. Article 2 of the Act on the Prohibition of Discrimination against Persons with Disabilities and the Protection, etc. of their Rights stipulates that “the physical or mental impairment or loss of functions may bring considerable restrictions on an individual’s daily life or social life for a long time,” and stipulates that a person with such disability is a person with disabilities. In full view of the relevant provisions, it can be interpreted that “a person with a physical disability” as “a person under considerable restriction in the daily life or social life due to any physical function or structure

On the other hand, the state of the victim related to disability differs from that of each individual, and such form and degree are essential elements to determine physical disability as prescribed in Article 6 of the Sexual Violence Punishment Act. Thus, in determining physical disability, the situation of the victim should be sufficiently considered, and the view and standard of non-disabled persons should not be easily concluded that there is no disability by considering the state of the victim.

In addition, in order to establish this crime, the perpetrator should be aware of the victim's physical disability at the time of the crime.

Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 11088, Nov. 17, 2011); Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012); Article 6 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; Article 2 of the Welfare of Disabled Persons Act; Article 8 of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 2 of the Act on Discrimination against Persons with Disabilities;

Defendant

Prosecutor

Law Firm LLC, Attorneys Shin Sung-ap et al.

Gwangju High Court Decision ( Jeju), 2015No106, 2015No9 decided March 16, 2016

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. Criteria for determining "physical disability" under Article 6 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter referred to as the "Sexual Crimes Punishment Act");

Article 6 of the Sexual Violence Punishment Act punishs a person with a physical disability who has sexual intercourse with another person by committing rape or by deceptive means or by force.

Article 6 of the former Sexual Violence Punishment Act, enacted on April 15, 2010, punished only sexual intercourse or indecent act with the object of “a woman or a person who is unable to resist due to physical disability, etc.” However, after the amendment of November 17, 201, the aforementioned amendment is subject to punishment for rape, indecent act by force, etc. of “a woman or a person who has physical disability” as the object of “a woman or a person who has physical disability.” The purport of the amendment is to punish sexual assault crimes against the disabled in order to protect the disabled persons with the awareness ability, ability to resist, response ability, etc. of sexual assault.

Article 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse provides that "a person with a disability who has been subject to considerable restriction in his/her daily life or social life for a long time due to a physical or mental disability" and Article 8 of the Act on the Protection of Children and Juveniles against Sexual Abuse, which provides special provisions for sexual assault offenses against persons with disabilities similar to the Act on the Punishment of Sexual Violence, stipulates that "a person with a disability who is subject to considerable restriction in his/her daily life or social life for a long time" refers to a person with a disability under Article 6 of the Act on the Protection of Children and Juveniles against Sexual Abuse." Article 2 of the Act on the Prohibition of Discrimination against Persons with Disabilities and the Protection of Rights, Etc. provides that "a person with a disability who is subject to considerable restriction in his/her daily life or social life for a long time" refers to a person with a disability as a person with a disability. In full view of the relevant provisions, it can be interpreted that "a person with a physical disability"

Meanwhile, the state of a victim related to disability differs from that of an individual, and such form and degree are essential elements to determine physical disability as prescribed in Article 6 of the Sexual Violence Punishment Act. Thus, in determining physical disability, the situation of the victim should be sufficiently considered, and the view and standard of non-disabled persons should not be easily concluded that there is no disability by considering the state of the victim.

In addition, in order to establish this crime, the perpetrator should be aware of the victim's physical disability at the time of the crime.

2. The judgment of the court below

In order to constitute a physical or mental disability prescribed in Article 6 of the Sexual Violence Punishment Act, the lower court affirmed the first instance judgment convicting the Defendant of indecent act by compulsion, rape, and attempted rape, which are the ancillary facts charged, on the premise that the victim’s exercise of his/her right to sexual self-determination should have a physical or mental disability to the extent that it is necessary to protect the victim’s exercise of the right to sexual self-determination, and that it is difficult to deem that the victim has such disability or that the Defendant was aware that the victim had such disability at the time of committing the crime, and that each of the victims was in such disability at the time of committing the crime.

3. Determination

However, we cannot accept the above determination by the court below for the following reasons.

A. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

1) The victim’s right floor does not contact the ground, resulting in a situation in which the victim faces a big difficulty in walking without the axis or assistive device of another person, and where the victim is unable to walk on the right bridge by driving on the right bridge. Although the victim lives on the corrective device, the victim, who is a correction device, has a very short distance compared to the general public, and is still at a very short walking speed, as well as the walking speed. Furthermore, the victim is not always capable of wearing such corrective device. On the other hand, the victim is unable to recognize the other party in the surrounding area due to the snow of the right side, but it is difficult to recognize the other party.

2) On March 27, 1996, the victim was registered with the disabled on March 27, 1996, and at the time of the instant case, the victim was registered with the disabled of grade III (deficial disability time).

3) Even before the instant case, the Defendant, who was living in the victim’s side house, visited the victim’s house several times with the victim’s house, and was aware that the victim was a person with a disability who was living in the victim’s bridge.

B. Examining the above facts in light of the legal principles as seen earlier, the victim is a person who is damaged by the function of the right bridge and the right eye and has a physical disability prescribed in Article 6 of the Sexual Violence Punishment Act, and is subject to considerable restriction in daily life or social life. In addition, in light of the external appearance of the victim, the relationship between the defendant and the victim, etc., the Defendant appears to have been aware of such physical disability at the

Nevertheless, the court below determined that it is difficult to view that the victim was disabled or the defendant was aware of it at the time of committing the crime, and judged not guilty all of the charges of this case as to the violation of the Sexual Assault Punishment Act (compact by deceptive means against the disabled), the violation of the Sexual Assault Punishment Act (compact by compulsion against the disabled), and each violation of the Sexual Assault Punishment Act (Rape against the disabled). The court below erred by misapprehending the legal principles on the meaning of a person with a physical disability as provided in Article 6 of the Sexual Assault Punishment Act, which affected the conclusion of the judgment.

C. Therefore, the part of the judgment of not guilty as to the facts charged in the judgment below should be reversed, and since the part of the conjunctive facts charged which the court below found guilty is also identical to this body, the judgment of the court below should be reversed

4. Conclusion

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 Noh Tae-tae (Presiding Justice)