Defendant

Prosecutor

Freeboard Kim

Attorney Park Jae-sik (Korean)

Daegu District Court Decision 2010Gohap414 Decided December 3, 2010

The prosecutor's appeal is dismissed.

1. Scope of the trial;

Of the facts charged against the Defendant, the lower court acquitted the Defendant on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (rape-rape, etc. against the disabled) and dismissed the public prosecution on the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.). Since only the prosecutor appealed on the part of the acquittal as the lower court

2. Summary of grounds for appeal;

In full view of the following facts: (a) the victim’s physical disability third degree lacks the mental expression ability; (b) the Defendant committed the instant crime while knowing the victim from 4 years ago to ○○○○○○○○○○, a meeting of the disabled persons with a church; and (c) the place of the crime was a rare park; and (d) the Defendant did not request the victim to help hotly, even if the victim was unable to resist due to a mental disability, the lower court acquitted the Defendant of the instant facts charged, by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. Legal principles as to the state of impossibility to resist

Article 6 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (hereinafter “the state of inability to resist”) provides that “the state of physical or mental disability shall be deemed not only where the physical or mental disability itself is in a state of inability to resist, but also where the physical or mental disability is in a state of mental or physical difficulty that makes it impossible or considerably difficult to resist.” Among them, in determining whether the mental disability is the main cause of the mental disability, not only the mental disability of the victim, but also the relation between the victim and the perpetrator, including the status of the perpetrator, surrounding circumstances or environment, the content and method of the perpetrator, and the perception and response of the victim, shall be comprehensively examined (see Supreme Court Decision 2005Do2994, Jul. 27, 2007). However, Article 302 of the Criminal Act provides that the punishment of a person who has sexual intercourse or indecent act against a minor or a person with mental disability shall be strictly interpreted in light of the fact that the person has committed sexual intercourse or indecent act against a minor or a person with mental disability (see).

B. Determination

The victim appeared at the Daegu Women's and School Violence Support Center and made statements, as well as the date and time of investigation, and accurately and clearly stated the defendant at the time of committing the crime of this case as stated in the facts charged (33 pages, 35 pages, and 44 of the investigation record). The defendant's name-related questions about the defendant's name clearly stated that the "refinite" is outside the defendant's name (7 minutes and 28 seconds out of the recorded trial number). After this case, the victim called several times to ask the victim about whether the defendant had time, but the victim did not talk with the defendant (46, 47 pages of the investigation record). Examining the reasoning of the judgment of the court below in light of the above legal principles and evidence duly admitted and examined by the court below, the court below did not err by misapprehending the legal principles that the victim did not have any mental or physical resistance at the time of the crime of this case, or by misapprehending the legal principles that the defendant did not have any mental or physical resistance or failing to resist.

3. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jin-man (Presiding Judge)