[1] In a case where a child or juvenile made a speech or behavior that appears to be sexually determined or approved by a person's deception or distorted trust relationship by using another person's deception or distorted trust relationship, whether such a speech or behavior may be deemed to be by exercising the right to sexual self-determination

[2] In a case where an actor misleads the victim for the purpose of sexual intercourse, misleads the victim, causes a site, and achieves the purpose of sexual intercourse by taking advantage of such physical condition of the victim, whether the crime of sexual intercourse by fraudulent means is established (affirmative)

[3] In a case where the defendant introduced the victim under 14 years of age who became aware of a smartphone-making hardting clock to the effect that he was engaged in singing women, and if he was removed from the female, he was unable to do so, and the victim who consented to the defendant's proposal was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually corporate

[1] The reason for protecting children and juveniles is that it is difficult for children and juveniles to exercise their right to self-determination that has yet to be restricted due to social, cultural constraints, etc., and it is difficult for them to defend themselves from sexual invasion or exploitation due to lack of cognitive, psychological, and related resources. Moreover, given that children and juveniles are in the process of forming sexual values and completing sexual health, sexual infringement or exploitation against children and juveniles may seriously and continuously affect the mental and physical health of children and juveniles to pursue and form and develop their own self-regulation with respect to their performance, as they are in the process of forming sexual values and completing their sexual health. Therefore, even if a speech or behavior that they appear to be sexually sexual determination or consent is made by a child and juveniles, if it is caused by the use of distorted trust relationship, it is difficult to evaluate them as being caused by the exercise of the right to sexual self-determination that has been adopted by the children and juveniles.

[2] In the crime of sexual intercourse through a deceptive scheme, “defluence” means causing mistake, mistake, and land to be used by the victim in order to achieve the purpose of the actor’s act. In full view of the concept of deceptive scheme and the legislative attitude to protect and punish the offender strongly, the victim’s awareness, psychological, and the circumstances where it is difficult for the perpetrator to expect the exercise of sexual self-determination right of sexual assault due to the victim’s awareness, psychological, and relation characteristics, the causal relationship between the deceptive scheme and the sexual intercourse may be acknowledged if the perpetrator misleads the victim for the purpose of sexual intercourse, makes the site, and achieves the purpose of sexual intercourse by taking advantage of such physical state of the victim, and therefore, the crime of sexual intercourse through a deceptive scheme is established. If a sexual act was committed based on a distorted sexual decision, it is difficult to say that the place where the distorted act was committed was itself and caused by the act of sexual self-determination is an essential part in that infringement on the sexual self-determination right of sexual intercourse.

However, since the perpetrator’s deceptive speech and behavior does not constitute a crime of sexual intercourse by deceptive means solely on the ground that the perpetrator’s deceptive speech and behavior exists, it is necessary to assess that there was no voluntary exercise of the victim’s right to sexual self-determination on the ground that the content of the deceptive speech and behavior includes circumstances that can achieve the important motive behind the victim’s sexual intercourse. In determining such causal relationship, various circumstances, such as the victim’s age and relation with the offender, background leading to the crime, and situation before and after the crime, should be comprehensively

On the other hand, since the sexual self-determination ability of children and juveniles, minors, persons with mental disability, wards, supervisors, persons with disabilities, etc. whose sexual intercourse is subject to protection by deceptive means differs depending on their age, growth process, environment, intelligence or mental function disorder, etc., when determining whether the sexual intercourse constitutes a deceptive scheme with causal relationship with the sexual intercourse, the victim’s position and perspective in specific criminal circumstances should be sufficiently taken into account, and the causal relationship should not be readily denied from the perspective of adults with general and average judgment ability or from the future perspective of being provided with adequate protection and education.

[3] In a case where the defendant introduced the victim under 14 years of age who was aware of a smartphone-making clock to "A who was a second-class student of high school" and falsely adopted him as "A" and conspired with him through hosting, which means that he is engaged in sing female, and if he is removed from such female, the victim who consented to the defendant's proposal should have sexual intercourse with the victim's good faith, and the victim's sexual intercourse with the victim's good faith, the case holding that the judgment below was erroneous in the misapprehension of legal principles as to the victim's sexual intercourse with the victim's voluntary sexual intercourse with the victim, on the ground that the victim who is a child or juvenile under 14 years of age, was under 36 years of age, was removed from the victim's sexual intercourse with the victim, and it is difficult to see that the victim's sexual intercourse with the victim's voluntary sexual intercourse with the victim's sexual intercourse with the victim's sexual intercourse with the victim, on the ground that the victim did not have sexual intercourse with the victim's own self-determination.

[1] Article 10 of the Constitution / [2] Article 7 (5) of the Act on the Protection of Children and Juveniles against Sexual Abuse / [3] Article 10 of the Constitution, Article 7 (5) of the Act on the Protection of Children and Juveniles against Sexual Abuse

[2] Supreme Court Decision 2001Do5074 Decided December 24, 2001 (Gong2002Ha, 427), Supreme Court Decision 2002Do2029 decided July 12, 2002 (Gong2002Ha, 2000), Supreme Court Decision 2007Do6190 Decided September 21, 2007 (Amended by Presidential Decree No. 20119 decided September 27, 2012 (Amended by Presidential Decree No. 20150, Sep. 27, 2012); Supreme Court Decision 2014Do8423, 2014 Jeondo151 decided September 4, 2014 (Change) (Gong2014Ha, 2087) (amended by Presidential Decree)

Defendant

Prosecutor

Attorney Kim Jong-hwan

Gwangju High Court Decision 2015No145 decided June 11, 2015

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

The grounds of appeal are examined.

1. The details and key issues of this case

A. Summary of the facts charged

1) On July 2014, the Defendant introduced himself/herself as “○○○, a second-year student in high school,” to the victim of 14 years of age, who was aware of through a smartphone hosting application, in a false manner, and did so with the victim through hosting.

2) On August 2014, the Defendant expressed to the Defendant that “The Defendant would have a woman scaming with bal(○○○○) good fact, and that it would be too difficult for the Defendant to b to scam. I want to die.” The Defendant’s false statement to the effect that “I will remove the scaming woman from the scambling woman, if I want to do so.”

3) The victim consented to the proposal of the Defendant by having the hedging with the Defendant, and the Defendant committed the act as if he was the ship of ○○○○○, and had sexual intercourse with the victim.

4) Accordingly, the Defendant had sexual intercourse with the victim who is a child or juvenile by deceptive means.

B. The judgment of the court below

The court below found the defendant not guilty of the facts charged in this case on December 24, 2001, in accordance with the Supreme Court Decision 2001Do5074 Decided December 24, 2001, stating that "the crime of sexual intercourse through fraudulent means means to achieve the objective of sexual intercourse by taking advantage of the other party's physical condition that the person who committed the act misleads the other party for the purpose of sexual intercourse, knows, or causes land for the purpose of sexual intercourse, and, in this context, mistake, mistake, perception, and site for the act of sexual intercourse itself, referring to mistake, mistake, and mistake of site itself, and mistake, mistake, mistake, and site for other conditions that are not recognized as indivisible to the act of sexual intercourse, etc. (hereinafter referred to as "previous case"), since the defendant's act of sexual intercourse only belongs to the defendant on other conditions that are not recognized as indivisible to the act of sexual intercourse, it shall not be subject to punishment under the Criminal Act, etc.

C. Key issue of the instant case

Whether or not the previous precedents that interpreted the meaning of deceptive scheme can be maintained in the crime of sexual intercourse through fraudulent means, which is subject to punishment under the Criminal Act, are issues to judge whether or not the judgment of the court below is proper. In this regard, it is judged whether or not the previous precedents are maintained considering the legislative background of the crime of sexual intercourse by deceptive means and the meaning of exercising

2. Legislative background of the crime of sexual intercourse through fraudulent means;

A. The penal provision on sexual intercourse under a deceptive scheme began in 1953. The former Criminal Act prescribed this as part of the crime concerning Article 32 of Part II as part of the crime concerning Article 32 of the former Criminal Act. The statutory penalty at the time was lower than the statutory penalty for the crime of indecent act by force, and among them, the crime of sexual intercourse under a deceptive scheme was also subject to “a female who is not habitually engaged in sexual intercourse.” As such, at the time of the enactment of the Criminal Act, it appears that the crime of sexual intercourse under a deceptive scheme was recognized as a supplementary type of crime with the aim of protecting the peace of female at the time of the enactment of the Act for the purpose of protecting the peace of female,

B. After the revision of the Criminal Act on December 29, 1995, the expression “crimes concerning good faith” was deleted in the title of Chapter 32 of Part II, with the revision of the Criminal Act on December 29, 195. Moreover, the crime of sexual intercourse by a person under pre-facing marriage, etc., which was stipulated for a female who has not been habitually engaged in sexual intercourse, was repealed by reflecting the Constitutional Court’s decision of unconstitutionality and purport of the decision of unconstitutionality such as Supreme Court Decision 2008Hun-Ba58, Nov. 26, 2009, the object of the crime of sexual intercourse under the Criminal Act was limited only to minors, mentally handicapped persons, wards and

C. In the Special Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, the provisions were newly established in the Special Act on the Punishment of Sexual Crimes against Women under the age of 13. The amendment was made on August 22, 1997 of the former Act on the Punishment of Sexual Crimes and the Act on the Punishment of Sexual Crimes (amended by the Act on the Punishment, etc. of Sexual Crimes (hereinafter “Sexual Crimes Punishment Act”) with respect to women under the age of 13. The amendment was made on February 3, 200 for women under the former Act on the Protection of Juveniles against Sexual Abuse (amended by the Act on the Protection of Children and Juveniles against Sexual Abuse; hereinafter “Juvenile Protection Act”), and the amendment was made on November 17, 2011 for those women under the age of 13. The amendment was made to the statutory punishment prescribed in the Act on the Punishment of Sexual Crimes against Sexual Crimes against Sexual Abuse and the statutory punishment prescribed in the Act on the Punishment of Children and Juveniles against Sexual Abuse against Sexual Abuse against the age of 13.

D. In full view of the progress of the amendment of the crime of sexual intercourse through a deceptive scheme as above and the legal contents around 2014 applicable to this case, today, unlike in the past, it can be evaluated that today, unlike the past, a person who is particularly vulnerable to sexual assault, such as a child, juvenile, minor, mentally ill-incompetent, mentally ill-incompetent, ward, supervisor, disabled person, etc., is subject to protection, and has an independent penalty against rape, etc., and thus, an offender is strongly punished.

3. The meaning of exercising the right to sexual self-determination

A. Article 10 of the Constitution provides, “All citizens shall have dignity and value as human beings and have the right to pursue happiness. The State shall have the duty to confirm and guarantee the fundamental human rights of an individual infinite.” The right to self-determination is the right protected by the right to personality and the right to pursue happiness as prescribed by Article 10 of the Constitution (see Supreme Court en banc Decision 2009Da17417, May 21, 2009, etc.).

The right to sexual self-determination is understood as the right to choose the other party under his/her own responsibility and to have a sexual relationship based on his/her own sexual concept based on his/her own personal life, etc., based on his/her own choice (see, e.g., Constitutional Court en banc Decision 99Hun-Ba40, Oct. 31, 2002). This also has the negative aspect of the right to refuse sexual conduct, along with the positive aspect of his/her right to decide sexual conduct, and the passive aspect of his/her right to refuse sexual conduct, and the crime of rape and indecent conduct, including sexual intercourse, through fraudulent means, infringe on his/her passive right to sexual self-determination (see Supreme Court Decision 2019Do341, Jun. 13, 2019).

B. The victim of the instant case refers to the 14 years of age who is under the age of 19 and refers to the children and juveniles under the Juvenile Protection Act.

The State and society shall bear a variety of duty to protect children and juveniles. The State shall implement policies to improve the welfare of juveniles (Article 34(4) of the Constitution), and bear the duty to provide elementary and secondary education (Article 8 of the Framework Act on Education). The same applies to the private law area, which protects and rears minors (Article 913 of the Civil Act). In principle, legal acts performed by minors without their legal representatives’ consent may be revoked without limitation (Article 5 of the Civil Act).

The court has also decided on the premise that child and youth is specially protected in the case where the victim is a victim. The Supreme Court held that, in determining whether a child constitutes sexual abuse against a child under the Child Welfare Act, even if a child did not express an explicit opposite opinion, whether it is attributable to a situation where the child lacks the ability to protect himself/herself by exercising his/her right to sexual self-determination (see Supreme Court Decision 2013Do7787, Jul. 9, 2015). In the crime of child trafficking under the Child Welfare Act, even if the child and youth consented to the production of obscene materials for himself/herself, the court held that the child and youth was guilty even if the child and youth consented to the production of obscene materials (see Supreme Court Decision 2015Do6480, Aug. 27, 2015). In principle, even if the child and youth consented to the production of obscene materials for himself/herself, the purport of the Supreme Court Decision 2014Do11501, Feb. 12, 2015).

The reason for protecting children and juveniles is that it is difficult for children and juveniles to exercise their full right to self-determination yet due to social, cultural constraints, etc., and it is difficult for them to defend themselves from sexual infringement or exploitation of others due to lack of cognitive, psychological, and related resources. Moreover, given that children and juveniles are in the process of forming sexual values and completing sexual health, sexual infringement or exploitation of children and juveniles against children and juveniles may seriously and continuously affect their mental and physical health and pursuing their own self-regulation in relation to their performance and forming and developing their own personality. Accordingly, even if children and juveniles made a speech or behavior that appears to be sexually sexual determination or consent, if such speech or behavior is caused by the use of a distorted trust relationship, it is difficult to evaluate that it is caused by the exercise of the right to sexual self-determination by children and juveniles.

C. In that it is difficult for the victim to defend himself/herself from external influence, including the offender, due to the disabilities, such as age, mental function, etc. of minors, mentally ill-minded persons, persons with disabilities, wards, persons with disabilities, etc., and subordinate relationships between the offender and the victim, which are defined as subject to protection of sexual intercourse through a fraudulent means, there is no essential difference between the child and juvenile as seen earlier in that the victim is unable to defend himself/herself from the external impact of the offender

4. The meaning of deceptive scheme in the crime of sexual intercourse through fraudulent means;

A. The term “defensive scheme” means causing mistake, mistake, and land to be used to achieve the purpose of an offender’s act. In full view of the concept of deceptive scheme and the legislative attitude to protect and strongly punish an offender, the victim’s awareness, psychological and related characteristics, etc., where it is difficult for an offender to expect the exercise of sexual self-determination right to sexual assault due to the victim’s awareness, psychological and related characteristics, the causal relationship between deceptive scheme and sexual intercourse may be acknowledged if the offender misleads the victim for the purpose of sexual intercourse, misleads the victim, causes the site, and achieves the purpose of sexual intercourse by using such in-depth state of the victim, and accordingly, the crime of sexual intercourse by deceptive scheme is established. If a sexual act was committed based on distorted sexual decision, the motive leading to the distorted act itself or sexual intercourse is difficult to be deemed as the core part in that it infringes on the sexual self-determination right. The same applies to misconception, the victim’s mistake, the object at the site, and the object of the sexual intercourse, which may be the object of the sexual intercourse itself or may be a non-money act.

B. However, since a perpetrator’s deceptive speech or behavior does not constitute a crime of sexual intercourse by deceptive means solely on the ground that the perpetrator’s deceptive speech or behavior exists, it is necessary to assess that there was no voluntary exercise of the victim’s right to sexual self-determination on the ground that the content of the deceptive speech or behavior includes circumstances that may achieve the important motive behind the victim’s sexual intercourse. In determining such causation, various circumstances such as the victim’s age and actor’s relationship, background leading to the crime, and situation before and after the crime should be comprehensively considered.

C. Meanwhile, since the sexual self-determination ability of children and juveniles, minors, persons with mental disability, wards, supervisors, persons with disabilities, etc., whose crime of sexual intercourse by deceptive means is subject to protection, differs depending on their age, growth process, environment, intelligence or mental disability degree, etc., in determining whether a person constitutes a deceptive scheme having causal relation with sexual intercourse, the victim’s position and perspective in specific criminal circumstances shall be sufficiently taken into account, and the causal relation shall not be readily denied from the perspective of adults with general and average judgment ability or from the same time they received general and adequate protection and education.

D. In the crime of sexual intercourse through a deceptive scheme, Supreme Court Decisions 2001Do5074 Decided December 24, 2001; 2002Do2029 Decided July 12, 2002; 2007Do6190 Decided September 21, 2007; 2012Do919 Decided September 27, 201; 2012Do919 Decided September 27, 201; 2014Do842315 Decided September 4, 2014; and 201Do2015 Decided September 15, 2014, etc. are to be amended to the extent that it is inconsistent with this Opinion.

5. Determination

A. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

1) The Defendant, who is a male of 36 years of age, was engaged in the second-year ○○○○○ high school and went to the victim of 14 years of age through a hosting application.

2) In the process, the Defendant was engaged in the conduct of a woman singing ○○○○, and the victim should be able to use ○○○○ in good condition. On the other hand, it is difficult for the victim to engage in the conduct of ○○○○ and singing the victim because it is too difficult for the victim to do so. If the victim refuses to do so, the Defendant requested to change the relationship between her vessel and sexual intercourse at the female’s request. Such an offer and request were repeated several times.

3) Ultimately, the victim, who was difficult to ○○○○ and ○○, agreed to her sexual intercourse with ○○○○○○○’s vessel. To that end, he/she boarded a express bus on the new wall and moved it to the place designated by the Defendant. The Defendant had sexual intercourse with ○○○○○ and had sexual intercourse with the victim.

4) After 12 days from the occurrence of the instant case, the victim could have known of such fact to the parents, the victim reported it to the police with the help of the counseling center, and thereafter lived in a facility for protecting juveniles in another city away from his/her parents.

B. We examine the above facts in light of the legal principles as seen earlier. The victim, who is a child or juvenile who is only 14 years of age, was ordered by the Defendant for a considerable period of time in the situation established by the Defendant as a her mouth. In addition, considering the attitude and behavior of the victim before and after the instant case, there may be room to deem that the victim was unable to receive sufficient protection and rearing from his parent. These circumstances indicate that the victim was unable to make a full decision at the time. Under such circumstances, the victim’s act of sexual intercourse between the Defendant and the Defendant’s sexual intercourse between the Defendant and the Defendant and the Defendant’s sexual intercourse between the Defendant and the Defendant’s sexual intercourse with the ○○○○○○○○ by misunderstanding that the Defendant’s sexual intercourse was a method by which the her sexual intercourse with the ○○○○○○○○○○ was removed and continued. If the victim did not make such mistake, it appears that the victim’s sexual intercourse with the Defendant was an important motive for the victim’s sexual intercourse with the Defendant.

C. Nevertheless, the lower court acquitted the Defendant of the instant facts charged on the grounds as seen earlier. In so determining, the lower court erred by misapprehending the legal doctrine on sexual intercourse with deceptive scheme, thereby adversely affecting the conclusion of the judgment. The Prosecutor’s ground of appeal assigning this error is with merit

6. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench. It is so decided as per Disposition by the assent of all participating Justices on

7. Concurrence with Justice Min You-sook and Justice Noh Jeong-hee

I would like to supplement the meaning of the Supreme Court en banc Decision in light of the recent legal amendment situation related to the issues of this case.

A. The Criminal Act, the Punishment of Sexual Violence Act, and the Juvenile Sex Protection Act, which regulates sexual crimes, has been repeatedly amended, and in particular, the tendency to strengthen punishment and protect the victim in sexual crimes by means of means that do not reach assault and intimidation is clearly confirmed. This is derived from the awareness that sexual crimes are unable to properly cope with sexual crimes in our society, in the framework of traditional accidents, which have been assumed to be used as means of physical coercion that make it impossible or considerably difficult to resist the victim's resistance, i.e., assault and intimidation to the extent that the victim's will can be completely restricted.

With the revision of the Criminal Code on October 16, 2018, in cases of sexual intercourse with a person under protection and supervision by acting as a broker and employment intermediary, the upper limit of the statutory penalty was from five years to seven years of imprisonment, and in cases of sexual intercourse with a detained person, the upper limit of the statutory penalty was from 7 years to 10 years, respectively. The Sexual Violence Punishment Act punished the act of indecent act against the same subject of protection. The amendment of the same date, the upper limit of the statutory penalty was from 2 years to 3 years or 5 years of imprisonment.

It can be understood that sexual assault cases that continue to be done by mediating decision-making, direction-making, etc. inside the workplace and organization have to be punished for relatively low punishment even though the adverse effects on the society as well as the victims are not only committed but also the victims.

B. In particular, an amendment to the law that may pay special attention is a provision that protects the sex of children and juveniles between 13 and 15. Following the amendment of the Act on the Protection of Juveniles from Sexual Abuse, a person aged 19 or older was punished for committing sexual intercourse and indecent act by taking advantage of the poor state of the above children and juveniles (Article 8-2 of the Act on the Protection of Juveniles from Sexual Abuse), and upon the amendment of the Criminal Act on May 19, 2020, a person aged 19 or older was punished without asking for the existence and degree of the forcedness of the means if the person aged 19 or older sexual intercourse or indecent act against the children and juveniles between 13 and 15 (Article 305(2) of the Criminal Act). The victim of the instant case is 14 and 36 years of age, and thus, is subject to punishment, regardless of the means, under the aforementioned amendment.

Although the sex opening and the sex-oriented winding culture increases in the risk of sexual exploitation to children and juveniles, children and juveniles are already pointed out that it is difficult for them to exercise the right to sexual self-determination or defend themselves because they are not fully aware of the social norms that choose sexual acts and their counterpart and of the mutual reaction of sexual acts. Even if they do not have any means of violence, intimidation, deceptive scheme, or self-defense, they are responding to sexual acts in the situation where various complex factors are involved beyond their own will, and as a result, they are subject to sexual acts that are exploitation, abuse, and harming themselves. Based on their understanding of their sexual relations and decision-making, even if they seem to have consented to sexual acts, they should strengthen the legal safety net for children and juveniles.

The victims of sexual assault, in particular, concern about the fact that they would have been aware of the fact that they would have committed sexual assault, and about the fact that they would have been aware of the fact that they would have been subject to criticism even though they were victims of sexual assault, and about the fact that they would have been unable to distinguish whether they were criminals or not, and that they would not change their reports. Even if the form of exercise of forced force is not specifically specified, and even if they did not specifically specify the form of exercise of forced force, they should not be out of sexual harm solely on the ground that they consented to sexual assault, and there is a need to block cases where children and juveniles have come to sexual assault, such as intimidation, etc., but rather, they are subject to other sexual exploitations. The purpose of these criminal policy is reflected in each of the above provisions.

As seen earlier, this provision is identical with a normative judgment that the act of infringing the victim's right to self-determination by spreading the weak gap of the victim who is vulnerable to sexual assault and ultimately constitutes a serious sexual crime.

As a result, the above legislation assumes that even if there is the appearance of a person under 16 years of age who agreed to sexual act, it cannot be seen as the exercise of genuine sexual self-determination. Therefore, it is reasonable to approach the aspect of whether sexual act of a person under 16 years of age has infringed the gender to be protected rather than approaching the aspect of respecting the exercise of sexual self-determination formally.

As above, I express my concurrence with the Majority.

Justices Kwon Soon-il (Presiding Justice)