Whether a crime of sexual intercourse is established in a case where an actor misleads the victim for the purpose of sexual intercourse, causes a mistake, mistake, or site, and achieves the purpose of sexual intercourse by taking advantage of such a state in the victim’s physical condition (affirmative)

Article 7(5) of the Act on the Protection of Children and Juveniles against Sexual Abuse

Supreme Court en banc Decision 2015Do9436 Decided June 13, 2019 (Gong2019Ha, 1413) (Gong2019Ha, 1413) Supreme Court en banc Decision 2015Do9436 Decided August 27, 2020 (Gong20Ha, 1872)

Defendant

Defendant and Military Prosecutor

Law Firm Dong-dong, Attorneys Gyeong-chul et al.

High Court for Armed Forces Decision 2019No359 Decided March 10, 2020

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

The grounds of appeal are examined.

1. As to the grounds of appeal by the military prosecutor

A. Summary of the facts charged

Of the facts charged in the instant case, the summary of the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter “Juvenile Protection Act”) is as follows: The Defendant, from July 22, 2019 to July 27, 2019, demanded the victim to engage in sexual intercourse in return for KRW 150,000,000 already paid to the victim for sexual intercourse (hereinafter “victim 16 years of age”), and the victim’s “I am flickly after having 12 hours of age and short, I am flick so that I am not to come up with the victim.” “I am flickly responsible flickly, I am flick with the victim’s signature on the 16th day of the instant case’s use of the message “I am flickly known, I am flickly, I will see that I will have to complete payment to the victim’s body, and will be 150,000 won of sexual intercourse with the victim’s obligation.

B. The judgment of the court below

The court below held that Article 7 (5) of the Act on the Protection of Juveniles from Sexual Abuse refers to the offender's exercise of authority by the other party's free will to achieve the purpose of sexual intercourse by taking advantage of a state under which the other party's free will is controlled by the other party's free will for the purpose of sexual intercourse, and that the other party's free will in this context means the suppression of the other party's free will in sexual intercourse itself, and that the defendant's exercise of authority should be proved without any reasonable doubt, if there is a considerable time and place gap between the exercise of power and the sexual intercourse, as

Furthermore, the lower court determined that it cannot be deemed that there was no reasonable doubt as to the fact that the Defendant had intended to have sexual intercourse with the victim under the pretext of sexual trafficking or interest in arrears, but the Defendant did not have met the victim, and that there was no fact that the Defendant set a specific date, time, place, etc. for sexual intercourse, or responded to setting such date, time, place, etc., at the time of exercising the victim’s power, and that it was difficult to deem that the Defendant merely had a vague idea of sexual intercourse with the victim at the time of exercising the victim’s power, and that it did not reveal a specific plan or intention to reach the actual sexual intercourse, such as the Defendant’s facts charged, that the Defendant’s act was under the restraint of the victim’s freedom of sexual intercourse itself, or that the Defendant’

C. However, we cannot accept the above judgment of the court below as it is.

1) The crime of sexual intercourse under Article 7(5) of the Act on the Protection of Juveniles from Sexual Abuse may be recognized in cases where the offender misleads the victim for the purpose of sexual intercourse, misleads the victim, causes sites, and achieves the purpose of sexual intercourse by taking advantage of such physical condition of the victim, and accordingly, the crime of sexual intercourse is established by deceptive scheme. If a person commits sexual intercourse based on distorted sexual decision, whether the place where the distorted act occurred is the motive leading to the sexual act itself or the sexual self-determination is the same as that of the occurrence of infringement on the sexual self-determination. It is difficult to say that the core part of the crime is the same. The object to be taken into place by mistake, mistake, and the victim may be the same as the pecuniary and non-money consideration associated with the act of sexual intercourse. However, the crime of sexual intercourse under Article 7(5) of the Act on the Protection of Juveniles from Sexual Abuse is not established solely on the ground that the perpetrator’s deceptive act or behavior existed, and thus, the victim’s voluntary sexual self-determination should also be considered in the relationship between the victim and the victim’s voluntary sexual self-determination.

2) Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A) The Defendant reported the victim’s remaining message, and contacted the victim, who was aware of the age of 17, made two instances of sexual purchase by setting the time and place immediately when the Defendant agreed to do so.

B) The Defendant sent 150,000 won to the victim twice in return for the purchase of sexual intercourse, and sent a twitter message, such as the facts charged, demanding the victim to pay 150,000 won in full from July 22, 2019 to July 27, 2019, who did not comply with the remaining one-time sexual intercourse.

C) On July 28, 2019, the Defendant: (a) lent twitter messages written by the victim that he borrowed KRW 500,000,00 to the victim; (b) decided to pay in installments each day from July 30, 2019 to 60,000 won on the loan certificate; and (c) determined interest on overdue payments as two-time sexual intercourses; and (d) demanded the repayment of borrowed money, and subsequently, sent a Kakao Stockholm message, such as the charge of demanding sexual intercourse on the ground of repayment of borrowed money or delinquency in payment.

D) The victim stated that not only the above demand for reimbursement or sexual intercourse, but also the defendant, who was aware of his house, has affixed his photograph before his house, had attempted to make a continuous call, wanted to repay his debt as soon as possible and to remove the defendant, and that he reported his intention to the police.

3) Examining the above facts and the following circumstances revealed through the above facts in light of the legal principles as seen earlier, the Defendant may be deemed to have exercised a power to suppress the victim’s free will on the important motive for sexual intercourse from the victim’s standpoint.

A) The message sent by the Defendant to the victim includes demanding sexual intercourse on the ground of repayment of the obligation, repayment of the obligation, or delinquency. In addition, even though there are many requests for repayment of the obligation, it is not purely demanding the repayment of the obligation, but forcing choice from the act of sexual intercourse instead of purely demanding repayment of the obligation, and may serve as an important motive to make the act of sexual intercourse significantly decided by forcing the victim who is not capable of performing the obligation to sexual intercourse, such as forcing the victim to perform the act of sexual intercourse.

B) Although the Defendant and the victim did not specifically mention the time and place of sexual intercourse in the message sent by the Defendant to the victim, the Defendant and the victim, even at the time of sexual purchase, contact with each other via Twitter and set the time and place immediately thereafter if they agree with each other. At the time of the instant case, the victim could immediately go to sexual intercourse by setting the time and place, and thus, it is difficult to view the fact that the Defendant did not set the time and place for sexual intercourse as the material nature of the criminal plan or the means of sexual intercourse is an important matter in determining whether the Defendant’s sexual intercourse is the means of sexual intercourse.

D. Nevertheless, the lower court rendered a not-guilty verdict on the violation of the Juvenile Sex Protection Act among the facts charged in the instant case solely based on its stated reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on sexual intercourse by force. The Military Prosecutor’s ground of appeal assigning this error is with merit.

2. As to the Defendant’s ground of appeal

Although the Defendant appealed to the entire judgment of the lower court, the Defendant did not state specific grounds for objection to the petition of appeal or appellate brief.

3. Scope of reversal

As seen earlier, the part of the judgment of not guilty as to the violation of the Juvenile Protection Act (comprehion of deceptive scheme, etc.) should be reversed, and the attempted coercion, which is the ancillary charge, shall also be reversed in relation to the same body. The crime of violation of the Juvenile Protection Act (comprehion of sex), which the court below found guilty, should be sentenced to one punishment in relation to the above reversal and the concurrent crime under the former part of Article 37 of the Criminal Act. Therefore, the judgment of

4. 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.

Justices Noh Tae-tae (Presiding Justice)