(영문) 대법원 2021.2.4.선고 2018도9781 판결

On February 24, 2017, at around 02:45, the Defendant: (a) placed the victim Nonindicted Party 1 (the victim, 18 years of age), who is in the state of mental disorder, on a breath under the influence of alcohol on February 24, 2017, and committed an indecent act by taking advantage of the victim’s condition of mental disorder, by putting the victim out of the victim’s name, brode, panty, and panty, kid, and kid the victim’s chest by hand.

2. The judgment of the court below

In light of the following circumstances, the lower court reversed the first instance judgment convicting the Defendant of the instant facts charged on the grounds that it is difficult to readily conclude that the victim was in the state of mental disorder at the time of the instant case, and that it cannot be deemed that there was proof to the extent that there was no reasonable doubt that the Defendant committed an indecent act with the victim’s intentional act by quasi-indecent act with the intent to commit an indecent act by force.

A. According to CCTV photographs and images installed inside and outside the criminal scene, it is confirmed that the victim walked with the defendant as the entrance of the first floor of stairs, and that the defendant enters the entrance of the third floor with stairs instead of using the elevator, and that the defendant runs away near the third floor entrance of the victim mixed with the defendant during the calculation of the Kabro, and moves to the guest room. The above images do not confirm the fact that the victim is unsatisfy, or that the defendant moves to the third floor with the 1st floor of the Mobur to the third floor of the Mobur. Thus, there is no room to conclude that the victim has lost his mind or reached a defective condition.

B. The Defendant asserted that the victim was placed at the same time between the second and fifth floors of the above building in order to search for the victim's external inputs and belongings from the first floor of the building, and submitted a written statement to the effect that the Defendant and the employee of the main office in the above building had observed the victim. The "in-house report (the statement of the victim's staff)" also stated that "the victim was able to see and walk the surrounding area, and the victim was frighten and walked. I do not see that the victim did not take drinking much." At the time, the Defendant stated that "the victim was frighten from the phone before the crime scene was committed, and that the victim was frightened and frighted by the police officer," and that "the victim was frightened by the victim."

D. The victim, along with his/her friendship, is memory of the victim’s movement of alcohol into a singinging and singing room. However, the next day, stating that the defendant does not completely memory the defendant at a singing room. However, if the victim was in a defective condition under the influence of alcohol, it is not easy for the defendant to return to the victim in such a state and return to the drinking house located on several floors, or to move from the Moel first to the third floor.

E. There is a possibility that the part of the victim's behavior in his/her own state of consciousness may not be forgotten ("Scambling").

3. Legal principles concerning the relationship between the crime of quasi-rape and quasi-rape and indecent act by compulsion and alcohol boom;

A. Article 299 of the Criminal Act provides for the punishment of “a person who commits an indecent act by taking advantage of the person’s mental or physical condition or the state of failing to resist.” This quasi-indecent act is a protected legal interest to protect the sexual self-determination of a person who is unable to defend himself/herself due to mental or physical circumstances, and the sexual self-determination refers to the passive aspect that the sexual self-determination is the right to refuse the sexual relationship (see, e.g., Supreme Court en banc Decision 2015Do9436, Aug. 27, 2020).

B. In the crime of quasi-rape, the term “non-rape” means a state in which a person has no normal ability to judge a sexual act due to a mental disorder, and the term “non-satisfying” means a state in which psychological or physical resistance is absolutely impossible or considerably difficult due to a cause other than the non-satfy (see, e.g., Supreme Court Decisions 2005Do9422, Feb. 23, 2006; 2012Do2631, Jun. 28, 2012). This also applies to quasi-indecent acts. Even in the case of quasi-indecent acts committed by the victim, even though the victim was unsatfyed, or was temporarily lost or completely deprived of consciousness due to alcohol or medicine, if the victim was unable to exercise his/her normal ability to determine, response and coordinate ability for such reason, it constitutes a state in which the person is unable to resist or resist in the crime of quasi-rape or quasi-indecent acts.

C. 1) As a medical concept, the 'alkoutoutoutoutout' refers to the concentration of alcohol above the gravity level, and in particular, in a case where the blood concentration above alcohol level rapidly falls rapidly due to a short-term width, it means the actr loses memory of the fact that the alcohol content was conducted at a certain point by affecting the personal intermediary process (the specific function of brain involved in suppression) recording and interpreting the external stimulation.

In accordance with the degree of damage to alcohol trading, only a simple blackout and a full-scale blackout are included. However, in the form of serious toxicity of alcohol and typically associated with alcohol, it is a concept that is distinguished from the loss of food (pasing out) that is placed on the water due to the maximum and chilling behavior of alcohol.

2) Therefore, in the case of a victim who complained of quasi-rape or quasi-indecent act after drinking, it is difficult to recognize that the alcohol was a alcohol blackout that only caused the failure of the above memory formation at the time of the crime, in addition to memory disorder, the victim was disabled by the recognition function or food condition. However, in contrast, if the victim was under the influence of alcohol and was under the influence of alcohol, it can be recognized that the victim was in the state of mental disorder if the victim was under the influence of alcohol and was under the influence of alcohol.

In addition, in light of the concept of "rape-rape or quasi-indecent act" in the crime of quasi-rape or quasi-indecent act, if the victim was not in the state of loss of consciousness, but the victim's ability to form an intention due to alcohol or the resistance ability to meet the act of sexual self-determination was significantly deteriorated, such act constitutes "non-influence" and thus, sexual act against the victim may constitute the crime of quasi-rape or quasi-indecent act.

3) However, in the field of law and medicine, alcohol blackout is defined as ‘the loss of memory for important cases that have occurred while drinking alcohol,' and from the general public, it is often referred to as ‘a wide range of recognition function or loss of food that has occurred after drinking.’

4) Therefore, in a case where a defendant prosecuted on the ground that he/she was quasi-rape or quasi-rape of a victim in a habitual condition due to drinking, was not guilty at the time of committing the crime, and only he/she is unable to memory thereafter.” The court may distinguish whether the victim’s body and consciousness were alcohol blackout at the time of committing the crime, or significantly deteriorating the victim’s ability to control smoking or behavior, such as drinking, drinking speed and drinking time, the victim’s age and experience, the victim’s psychological and emotional condition, the victim’s ordinary relation with the victim, and whether the victim experienced memory after his/her usual drinking, etc., and whether the victim’s physical condition and consciousness were significantly deteriorated at the time of committing the crime should be determined by considering the following circumstances: (a) the victim’s situation at the time of being confirmed through CCTV or witness; (b) the manner and method of sexual contact; (c) the victim’s age and experience; and (d) the victim’s psychological and emotional condition; (c) the victim’s relationship between the victim and the victim and the victim’s oral or alcohol situation at the time of the victim.

4. Determination on the instant case

A. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are acknowledged.

1) At the time of the instant case, the victim was 18 years of age and the Defendant was 28 years of age, and there was no call for the relocation of the instant case.

2) At the time of the instant case, the victim was drinking alcohol in excess of the usual drinking volume. In particular, on February 23, 2017, 2017, at the short time from around 23:0 to 24:00, the victim drank two diseases per week. 3) on February 24, 2017, the victim went into a singing room located under the ground of the building with Nonindicted 3 and went into a singing room around 00:02. At around 01:0, Nonindicted 3 stated that the victim was under the influence of alcohol at the time of the police investigation, while the victim was under the influence of being congested, the victim was still under the influence of being married, and that the victim was under the influence of having been under the influence of sing, and that the victim was under the influence of sing. 3.

4) According to CCTV images, at the time, the victim was able to walk without much big distance. However, the victim appears to have been able to have opened another room while searching for toilets, opened a room, or opened a center on the floor with a sudden radius, and opened it on the floor.

5) At the time of entering the toilet, the victim reported Non-Indicted 3’s new communications at the time of entering the toilet, and the victim did not return to a singing room after the toilet. However, the victim did not return to the toilet. The victim stated that, in the police investigation process, she went to the toilet because she was too good and good in speed, and she did not have a mind after the talking in the toilet, and that the film was cut down from that time. The victim stated that she only stated that she only called her 's 's Makkwwwwwwwwwwk’ that she would walk the horse.

6) At around 01:20 on February 24, 2017, the Defendant met the victim before the first floor of the building in front of the building in which the said singing practice room was located. The Defendant stated to the effect that, in the course of investigation and trial, the Defendant: (a) she was entering the building to drink a toilet while drinking alcohol in the vicinity; (b) she was coming from the elevator of the first floor; (c) she she was fluored with the victim who she was coming from the elevator on the first floor; and (d) she she she was fluorous with the victim who she was fluorous, and she she was fluord with the other mind while drinking alcohol

7) However, the victim did not have any personal belongings and did not know where she had drinking alcohol. The Defendant did not have any drinking house between the second and fifth floor of the building with the victim in order to find out the external speculation and belongings of the victim.

8) During the investigation and trial process, the victim saw that he was flick at the fifth floor, and that he was flick at the same time, and that he was flick at the door. At the request of an employee who wants to complete the work, the defendant sat down the victim by taking the shoulder as a hand. At this time, the victim sat down on the floor while taking the shoulder of the victim. The victim sat down on the floor. 9) The defendant allowed the victim to go to go to the house, but the victim want to go to go to the "sat down, even if the victim was sat down," the victim was flicked, and the victim stated that "I want to go to go to the platform," and that the victim "I want to go to go to the sat."

10) On February 24, 2017, the Defendant and the victim entered the telecom around 02:06, and there was no empty room. At around 02:14, the Defendant and the victim entered the telecom, which was the place of crime. According to the CCTV image of the telecom, the victim, at the time when he entered the telecom, could walk alone, but the victim seems to have been able to walk alone, but at the time when he gets out of the stairs, it seems that there was a significant degree of vain, such as vadle, or vaking the wall or head at the wall.

11) Meanwhile, at around February 24, 2017, Nonindicted 3 and the victim’s mothered victim reported to the police around 02:21, 2017, to find the victim. The details of the report were “lever female-friendly women and women-friendly women,” and at around 02:40, the police confirmed the victim’s entry into the criminal scene, and asked the victim’s name with the guest cellphone, and found the victim in the guest room. At the time the police arrived at the mother room, the victim was exempted from the upper part of the body, and was dumped by the Defendant. On the other hand, the victim’s inner part and panty were found in the Defendant’s money.

12) Meanwhile, in the police investigation process, the victim stated that he/she was unable to get off and her clothes, and that he/she was engaged in her duties without getting off her clothes.

13) In the course of investigation and trial, the Defendant: (a) acknowledged that the Defendant was kis on the victim’s kis and kis on the breast part; (b) concluded that the Defendant was kis on the part of the victim; (c) kis on the part of the victim, kis, and kis on the part of the victim; and (d) stated that the Defendant was kis on the part of the victim while kis on the shower room while kis on the part of the victim, while kis on the part of the victim, kis on the part of the victim; and (c) the Defendant stated that the victim was locked on the part of the victim in the shower room; and (d) the Defendant made a statement to the effect that he was kis on the part of the victim by asking the name of the victim by personal phone, and asked the name of the victim by asking him on the part of the victim.

B. We examine the above facts in light of the legal principles as seen earlier.

1) If the victim stated that “after drinking ...”, the victim’s statement, without examining the above circumstances, such as the volume of drinking and the speed of drinking, should not easily recognize the possibility of alcohol blackout.

2) The influence of alcohol may vary depending on personal characteristics and circumstances. On the sole basis of the fact that the victim was able to walk for himself/herself, or to act, such as responding to his/her name, etc., that the victim did not have a state of mental disorder, etc. at the time of committing the crime, it is not readily concluded.

3) At the time of the instant case, the victim took a large quantity of alcohol to the extent that he did so. Without knowledge of the method of searching for one’s own behaviors or belongings, the Defendant first ended along with the Defendant on the day of the instant case. The victim locked again without ascertaining the situation even after her name by personal phone, and was in the situation where there was serious problems with the judgment ability and physical response ability to the extent that the police was able to enjoy a part of the clothes even when she was entering the telephone. In light of these circumstances, there is sufficient room to deem that the victim was in a state of mental disorder, such as the need for diving, by drinking alcohol at the time of engaging in an indecent act.

4) In light of the aforementioned circumstances, such as the relationship between the victim and the defendant, age difference, the situation before the victim reaches the defendant, and the circumstances leading up to the cartel, etc., the circumstance cannot be confirmed to deem that the victim consented to the conclusion of a sexual relationship with the defendant. Without considering such overall circumstances, it is unreasonable to deem that the victim was likely to have immediately consented solely on the ground that the victim was unable to memory the situation at the time, without considering such overall circumstances.

5) The Defendant’s statement on the circumstances leading up to sexual relations in the telecom room is unreasonable. It is difficult to believe that the victim, who entered the telecom with the Defendant and voluntarily kis, voluntarily laid off and temporarily set off clothes between the shorter order in which the Defendant kis the Defendant s. It is difficult to understand that the victim was out of the inner, panty, and inner boom, and that the victim was out of the inner, in light of the empirical rule, it is difficult to understand that the victim was out of the inner, and that the victim was out diving (the Defendant’s assertion on the circumstances found in the victim’s inner bat, also is inconsistent with the victim’s ordinary habitor (the Defendant’s assertion on the facts found in the victim’s inner bat), although the Defendant thought that the victim consented to the establishment of sexual relations, and asserted that the victim took part in the telecom, and the victim did not normally have any potential response to the above circumstances. Rather, it is sufficient to view that the Defendant was not guilty by misapprehending the legal principles on the victim’s indecent act by force.

5. Conclusion

Therefore, 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.