2012No430 Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (Disability)

Quasi-rape, etc.

A

Defendant

Oral Appellants, Courtrooms, and Courtrooms

Attorney Lee Dong-hoon

Seoggu District Court Decision 2012Gohap162, 2012 Jeon high-ranking6 decided July 12, 2012

January 24, 2013

Of the judgment below, the part of the defendant's case against the defendant is reversed.

A defendant shall be punished by imprisonment for three years.

The information on the accused shall be disclosed and notified through an information and communications network for four years.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) 이 사건 각 범행 당시 피해자는 장애인 신분증을 소지하고 있지 않았고, 지능이 약간 떨어져 보였으나 외관상으로 정상인에 가까워 보였으며, 현재는 정신장애 3급의 상태이지만 이는 친부(親父)인 원심 공동피고인 B의 학대로 인하여 정신장애의 정도가 심해진 것에 불과하다.

(2) At the time of each of the instant crimes, the Defendant and the victim voluntarily responded to the sexual intercourse between the victim and the victim, and even if they could have referred to as sufficient help to the nearest believers living in the middle of the time, the victim did not take any measure. (3) In addition, the victim did not interfere with the victim's communication, including cleaning of the law party, and (2) the process including cleaning of the law party, and (3) the customer's contact and the next heart. (4) The victim used Handphones in the name of the victim and opened a passbook in the post office to deal with the bank's business. (6) At the time of each of the instant crimes, the victim expressed his intention clearly, and the victim did not voluntarily respond to the victim's sexual intercourse with his or her own sexual intercourse. (6) At the time of each of the instant crimes, the victim expressed his or her own sexual intercourse with his or her own intention to resist him or her. (7) At the time of his or her refusal to commit violence against the victim's sexual intercourse.

(4) In full view of these circumstances, it is difficult to find that the victim was not in a state of non-performance of obligation due to mental disability, and that the defendant had sexual intercourse with the victim by taking advantage of the victim’s state of non-performance of obligation to resist. Nevertheless, the lower court erred by misapprehending the legal doctrine on “using the state of non-performance of obligation to resist” under the former Act, thereby adversely affecting the conclusion of the judgment, by applying Article 8 of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010; hereinafter “former Act”).

B. Unreasonable sentencing

The sentence of the court below (four years of imprisonment) is too unreasonable.

2. Ex officio determination

Judgment on the grounds for appeal shall be made ex officio prior to the judgment.

Article 16 (2) of the Addenda to the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 10567, Apr. 7, 201; hereinafter referred to as the "Revised Act") provides that "the Act shall enter into force on the date six months have elapsed since its promulgation," and Article 16 (2) provides that "the amended provisions of Article 16 (Concurrent Imposition of Punishment and Order to Attend, etc.) shall apply from the person who first commits sexual crimes after the enforcement of this Act," and Article 16 (2) of the amended Act on the Punishment, etc. of Sexual Crimes shall apply to the person who commits sexual crimes under the amended Sexual Exposure Act after October 8, 201 as of the enforcement date.

Nevertheless, the lower court determined that the Defendant committed prior to October 8, 201, the crime of quasi-rape for each of the instant persons with disabilities was subject to an order to complete a program under Article 16(2) of the amended Act, and ordered the Defendant to complete a sexual assault treatment program for 80 hours necessary for the prevention of recidivism pursuant to the main sentence of Article 16(2) of the amended Act. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of application, such as the punishment under Article 2 of the Addenda of the amended Act and the concurrent imposition of an order to attend a course, thereby adversely affecting the conclusion of the judgment.

Therefore, among the judgment of the court below, the part concerning the order to complete a program against the defendant cannot be reversed, and the order to complete a program under the amended sexual bomb Act is an incidental disposition which sentenced simultaneously with the judgment of the sexual crime case, and where the whole order to complete a program is unlawful, the part of the case shall be reversed even

3. Judgment on misconception of facts or misapprehension of legal principles

The judgment of the court below is a ground for ex officio reversal, but the defendant's assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of the court.

A. Relevant legal principles

Article 8 of the former Sexual Exposure Act provides that “A person who has sexual intercourse with a female or commits an indecent act against a female by taking advantage of the state of disability or mental disability to resist shall be punished under Article 297 (Rape) or 298 (Indecent Act) of the Criminal Act.” This is protected by the legal interest of sexual self-determination of a disabled person. It was originally enacted by Act No. 4702 of Jan. 5, 1994, which simply provides that “I have taken advantage of the state of disability to resist” at the time of enactment by Act No. 5343 of Aug. 22, 1997. The above amendment of the Act aims to expand the scope of a disabled person by referring not only to the state of disability or mental disability specified in the Welfare of Disabled Persons Act, but also to the extent that the offender’s mental or physical disability is deemed either impossible or considerably difficult to resist. 20 (see, e.g., Supreme Court Decision 90Da70720, supra.).

B. Determination

(1) Examining the following circumstances acknowledged by the evidence duly adopted and examined in the court below and the court below in light of the legal principles as seen earlier, it is reasonable to view that the victim was in a situation where psychological or physical resistance was either impossible or considerably difficult due to a mental disorder, and that the Defendant has sexual intercourse with the victim by taking advantage of the fact that the victim was unable to resist due to a mental disorder.

① 피해자에 대한 심리학적 평가보고서에 의하면, 피해자는 경도의 지적장애수 준[한국판 웩슬리 성인용 지능검사(K-WAIS)를 실시한 결과, 경도의 정신지체(62) 수준이었으며 언어성 지능 (57)과 동작성 지능(62) 모두 경도의 정신지체 수준이었다 ]에 머물러 있었고, 사고의 판단 능력도 떨어져 타인의 행동이나 의도를 정확하게 해석하여 자각하지 못하고 어떠한 생활사적 사건에서 자신의 의사를 표현하는 부분이 상당히 미성숙하고 서툴다고 판단되었으며, 글을 이해하지 못하여 의사소통 능력의 결함과 함께 사회적 관계를 형성하는 데 어려움이 많아 보이며 자신이 원하지 않는 행동에 대해서도 쉽게 수긍하는 경우가 많았을 것으로 보여지고, 언어적 개념형성이 또래보다 현저히 부족하며 가감승제의 수리력 또한 상당 수준 지체되어 있어 타인의 도움 없이 혼자서는 일상생활에서의 영위가 힘들 것으로 예상된다고 판단되었다( 수사기록 제31 내지 33쪽), 피해자가 정규 교육을 받지 못하였을 뿐만 아니라 성장 발달이 급격하게 이루어지는 아동·청소년의 시기에 사회와 고립된 채 생활하면서 발달 과정에 필요한 다양한 자극과 경험, 교육을 받지 못한 점이 위와 같은 지적 수준에 영향을 미친 것으로도 판단되었다(수사기록 제657쪽).

② A person with the same mental body as the victim seems to have an absolute tendency to obey it even if he or she did not feel tension with his or her superior power or ability. The victim seems to have been in the body of the victim because he or she did not receive normal school education in the state of his or her age from the third grade of elementary school to the age of his or her family in the state of intellectual disability as seen earlier, and that he or she did not go through normal school education in the state of his or her contact with his or her family, and that he or she did not live in the temple chief or the field (it appears that he or she performed work in the field or performed work in the field, and that he or she was only doing work to the surrounding people due to the next heart, etc.) in the state of intellectual disability as seen earlier.

③ In addition, the victim appears to have been unable to have been able to clearly express his/her intent and cope with his/her sexual assault in the situation of an irregular problem because the perception or concept of basic sexual intercourse, such as sexual acts between men and women, has not been properly formed in the process of continuously sexual assaulting to the chief of the temple who was living in him/her under the circumstances mentioned in the above paragraph (2). In addition, the victim's lack of awareness of sexual intercourse and lack of awareness of sexual assault was clearly revealed in the process of facing sexual assaulting from his/her father, male and female, father's relatives and paths.

④ Since the victim had been living in a place other than the temple, it appears that it was difficult for him to win his living in the place other than the temple. Moreover, the victim appears to have been the object of his guardian and will to live together with himself before sexual assault was committed, and sexual assault was committed several times before sexual assault was committed, and even before sexual assault was committed, the victim did not have a proper understanding of sexual relationship and the meaning of sexual assault as seen earlier. As such, it appears that the victim failed to properly indicate his intention of refusal at the time of sexual assault by the Defendant who was known to G (see, e.g., Investigation record No. 658 and testimony at the trial of the victim).

⑤ At the time of making a statement in an investigative agency, the victim revealed that he/she is not able to express or understand the abstract or tensions, such as making an answer only within the scope of a period between Sections 1 and 2 in response to the investigator's questions. In addition, even though he/she appeared as a witness at the trial, he/she did not understand the purpose of questioning accurately in the course of interrogation, and responded to the explanation of the P's explanation in trust related to credibility who appeared in the course of interrogation. In order to reinforce the meaning of his/her response, there was a lot of difficulties in properly expressing his/her thoughts or opinions by making a testimony different from that of the immediately preceding answer.

(6) In the trial of the party, P, a trusted person P, who was present with the victim, stated that “The victim may feel that there is a disability.” Considering the P’s statement and the period during which the defendant had been living together with the victim from January 2008, which began to work as the awareness of G, from January 2008 to January 2008, the defendant could have sufficiently known about the status of the victim’s intellectual disability at the time of each of the instant sexual intercourse.

7) The credibility of the Defendant’s statement in the original trial, which led to the confession of each of the crimes of this case, shall not be rejected solely on the ground that the Defendant denies his criminal act when the Defendant was in the trial, and that the witness P testified to the effect that he partially corresponds to the Defendant’s defense counsel. In particular, in light of the fact that the victim consistently states that each of the sexual intercourse in this case was committed in a state that he did not want to do so from the investigative agency to the trial court, it is more so (see the victim’

(2) In the same purport, the court below was just in finding the Defendant guilty of all the charges, and there was no error in the misapprehension of the legal principles as to "using the status of 'not being able to resist' under the former Act, as alleged in the grounds of appeal by the Defendant.

4. Conclusion

The part of the judgment of the court below regarding the defendant's case against the defendant is reversed under Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the part concerning the defendant's case against the defendant is ruled as follows through oral argument.

Criminal facts and summary of evidence

Since the criminal facts against the defendant recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Article 4 of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 8 of the former Act on the Punishment, Protection, etc. of Sexual Crimes (Amended by Act No. 10258, Apr. 15, 2010); Article 297 of the Criminal Act (Provided, That the upper limit of punishment shall be governed by the main sentence of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010))

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravated Punishment of Sexual Crimes and Punishment of Victims Thereof) of the Criminal Act (Aggravated Punishment of Concurrent Crimes as stated in the original judgment of the court below; b. Violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof)

1. An order for disclosure;

Article 37 (1) 1 and (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. An order to notify;

Article 41(1)1 and (3) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11162, Jan. 17, 2012; hereinafter “Special Cases Concerning the Punishment, etc. of Sexual Crimes”), although the victim, who was living together in the temple he/she was aware of, was in need of protection due to mental disability, the victim has sexual intercourse over two occasions using the victim’s mental disability condition. Rather, the crime is not good in light of the background leading up to each of the of the crimes in this case, method of crime, frequency of crime, etc. In particular, each of the crimes in this case has a significant impact on the victim’s mental shock, and the victim’s future life has a very bad impact on the victim’s life. Nevertheless, the disabled person need to resist the disabled person compared with the disabled person and thus the need to protect the disabled person has a greater need to punish him/her more severely than that of the disabled person.

However, there is no record of criminal punishment for 20 years prior to the commission of the instant crime. In particular, prior to the instant crime, there is no record of criminal punishment for sexual crimes, and the Defendant is able to lead a sincere life without supporting any similar crime, and the Defendant is not using it as a means of assault, intimidation, abuse, etc. in the course of committing the instant crime.

In addition to this point, the defendant's age, character and conduct, intelligence and environment, motive, means and consequence of the crime, conditions after the crime, circumstances after the crime, and the scope of the revised sentencing guidelines [the range of imprisonment with prison labor for not less than three years but not more than six years [the scope of punishment for sex crimes, general standards, rape (subject to not less than 13 years of age), and the aggravated area of general rape (subject to punishment)] 1] shall be determined as ordered.

For harmful judges of the presiding judge;

Judges fixed number of judges

Judges Yoon Young-soo

1) Since the date and time of the instant crime was around March 2008 and the provisions of the former Sexual Exposure Act were applied, the sentencing guidelines for sex crimes, which was enforced on July 1, 2009, were applied.