Article 299 of the Criminal Code, the meaning of "the state of non-competence"

The state of refusal to resist in Article 299 of the Criminal Code means the case where psychological or physical resistance is absolutely impossible or considerably difficult in the text of the cause other than the defect in accordance with Articles 297 and 298 of the Criminal Code.

Article 299 of the Criminal Act

Defendant

Prosecutor

Attorneys Kim Sang-chul et al.

Seoul High Court Decision 98No1695 delivered on September 8, 1998

The appeal is dismissed.

We examine the grounds of appeal.

Article 299 of the Criminal Act provides that a person who has sexual intercourse or commits indecent act by taking advantage of the person's mental disorder or state of refusal to resist shall be punished as the crime of rape or indecent act under Articles 297 and 298 of the same Act. In light of the above, the legal interest protected by this crime is to protect sexual self-determination against a person who is unable to defend himself due to mental or physical reasons, and Article 302 of the same Act separately provides for the punishment of a person who has sexual intercourse or indecent act against a minor or a person with mental disability by deceptive scheme or force, the state of refusal to resist under Article 299 of the Criminal Act shall be deemed to be a case where psychological or physical resistance is absolutely impossible or considerably difficult in the statement of causes other than the mental disorder in accordance with Articles 297 and 298 of the same Act.

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance that acquitted the defendant on the grounds that it is difficult for the victims to recognize the sexual acts of the defendant at the time of the crime of this case and the contents of conversation exchanged between the defendant and the victims at the time and dismissed the appeal by the prosecutor with respect to the quasi-rape and quasi-indecent act among the facts charged of this case. In light of the above legal principles and records, the above fact-finding and the judgment of the court below are just and justified (the victims are adults with normal judgment ability in light of their educational degree and marital life, as well as ordinary circumstances, it is acknowledged that the victims' safeness and safe city of the defendant can not act as the defendant's mental confusion and act as the defendant's mental confusion). And there is no violation of the rules of evidence or misapprehension of the legal principles concerning quasi-indecent act of quasi-indecent act as alleged in the ground for appeal by the prosecutor.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)