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Reasons
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(영문) 대구고등법원 2014.05.14 2013노601
성폭력범죄의처벌등에관한특례법위반(장애인강간)등
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The judgment of the court below is reversed.

Each of the facts charged in the instant case is the primary charge.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1) misunderstanding of facts and misunderstanding of legal principles, the Defendant attempted to have sexual intercourse with the victim, but did not have sexual intercourse with the victim, ② the victim was not in a state of failing to resist due to mental disability, and ③ the victim was not aware of mental disability. Nevertheless, the lower court determined that the Defendant had sexual intercourse with the victim in a state of failing to resist due to mental disability, which affected the conclusion of the judgment by misunderstanding of facts or misunderstanding of legal principles.

B. The lower court’s sentence is too unfilled and unfair.

2. Determination on the grounds for appeal

A. The summary of the primary charge is as follows:

1. The victim C (at that time, 18 years old) with intellectual disability of Grade II (Intelligent Index 48.9, Social Character 43) which was known to his own stalthy in the parking lot of the welfare center located in the south-gu, Sinsi-gu, Sinpo-si, and the victim had conversations with the victim C (at that time, 18 years old) who was unable to properly respond to the serious problem against the victim's will, such as sexual assault, while the victim was unable to properly respond to the situation against the victim's will, by taking advantage of his ability to judge the mental disability and ability to cope with the situation, such as sexual assault, while the victim requested the victim to refuse the sexual relation, the victim forced the victim to refuse the sexual relation, went back to the body of the victim, prevented the victim from taking the victim's body and shouldering the victim's body, preventing the victim from taking the victim's body and sexual intercourse, and then divided the victim's body into one part of the victim's body and one part of the victim.

2. A around B, 2011, in the south-gu, South-gu, a port near the residence of the victim C.

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